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Full text of "The mark in Europe and America [microform]; a review of the discussion on early land tenure"

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Author: 

Bryan 



J 



Enoch Albert 



Title: 



The mark in Europe and 
America 

Place: 

Boston 

Date: 

1893 



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Bryan, Enoch Albert, 1855^ 1941 

The mark in Europe and America ; a review of the discussion 
on early land tenure, by Enoch A. Bryan ... Boston, U. S. A., 
Ginn & company, 1893. 

vi p., 1 1., 164 p. 19^» 
Authorities : p. (157j-lG0. 



1. Mark. 2. Laud tenure. 



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I 



THE MARK 



IN 



EUROPE AND AMERICA 



A REVIEW OF THE DISCUSSION ON EARLY 

LAND TENURE 



BY 



ENOCH A. BRYAN, A.M. 

PRESIDENT OF VINCENNES UNIVERSITY, INDIANA 






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BOSTON, IJ.S,A, 
GINN & COMPANY, FUBlISHERS 

1893 




Due 



Copyright, 1893, 
By ENOCH A. BRYAN, A.M. 

ALL RIGHTS RESERVED. 



exchange 

MAY 1 1946 



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k LIBRARY. 

PREFACE. 




-»<>•- 



BOTH the theoretical and the practical sides of 
the question of land-ownership have, of late 
years, occupied a prominent place in the discussions 
not only of economists, but also of that considerable 
number of persons who are interested in economic 
questions. An important chapter of this discussion 
is concerned with the historical development of 
property in land, and this has turned almost entirely 
on the theory of the Germanic Mark and its relation 
to communal ownership. The writer of this essay, 
during a year of rest from his regular duties, has 
been able to take advantage of the ample material 
afforded by Harvard University bearing upon the 
subject, and to make this small contribution to the 
further consideration of the problem. 

The immense influence which the acceptance of 
the Mark theory must have, not only on economic 
thought, but also on practical legislation, and even 
on legal procedure, was probably not foreseen by 
those who promulgated it, but cannot but be ap- 
parent to one who will at the present day give it 



/ 




IRREG UJ.AB_PAGINATION 



IV 



Preface. 



careful consideration. Already the advocates of 
state ownership of land look upon it as affording 
that very necessary support to their scheme — an 
historical basis. At no distant day it may play a 
yet more important part in practical politics. It is 
this consideration which lifts the matter out of the 
region of mere antiquarian, or even theoretic inter- 
est, and places it within the range of those subjects 
upon which the intelligent reader wishes to be 
informed. 

This volume presents, chiefly, a sketch of the his- 
tory of the theory during the past forty years, and 
is not intended, primarily, as a presentation of the 
original documentary evidence, though the author 
has availed himself, so far as possible, of the original 
sources of information. The literature of the sub- 
ject has become so voluminous, and covers such a 
considerable period of time, that it would seem now 
to be worth while to gather up the scattered threads 
and attempt a connected statement and criticism. 
The attitude, both toward the evidence and toward 
its discussion, preserved during the examination of 
the question was, in so far as possible, characterized 
by suspension of judgment. But the author is not 
one of those who believe that the scientific investi- 
g;ator must never reach a conclusion, or that indiff er- 



Preface. v 

ence is a test of accuracy, and hence he has not 
hesitated to give expression to his views on the bear- 
ing of the evidence. He has tried to avoid the error, 
into which some writers unconsciously have fallen, 
of balancing the judgments of others upon the evi- 
dence, and inclining with the majority of the judg- 
ments rather than with the weight of the evidence. 

In dealing with the American evidence for the 
Germanic mark it was not deemed necessary to 
enter at length into any statement of historical 
facts. Those who have seen fit to attach so great 
an importance to supposed traces of the mark in the 
beginnings of American institutions, have made the 
public their debtor by bringing to light many inter- 
esting and important details in regard to the early 
settlements. The conscientious manner in which 
these have been gathered is deserving of all praise. 
But the question of the connection of the Germanic 
Mark with these, rests primarily, on the question of 
its existence, and secondarily, on the interpretation 
which is put upon the facts themselves. Hence, the 
present discussion has been confined largely to the 
interpretation of data which are the property of all. 

While it cannot be hoped that this brief essay on 
the history of property in land will add much to the 
work of the historical school of economists, yet it 



VI 



Preface. 



may help to indicate the growing interest in the 
United States in that broader view of economic 
questions which the new school has done so much 
to bring about. The economic history of recent 
periods, or, as it is sometimes styled, applied eco- 
nomics, has with us rapidly gained a prominent 
place among subjects of academic instruction. But 
the advantage which the study of earlier economic 
history derives from its larger perspective cannot 
fail to be observed; nor can we fail to see how the 
one is necessary to supplement the other, and how 
both are necessary to correct and render more real 
economic theory. 

The author wishes to acknowledge his very great 
obligation to Professor W. J. Ashley, of Harvard 
University, for his counsel in the preparation of 
this volume. It is due to his encouragement that 
it is offered to the public. 

Cambridge, Massachusetts, 
May 25, 1893. 



CONTENTS. 



CHAPTER I. PAGE 

The Theory of the Germanic Mark 

CHAPTER n. 

.... 20 
Nature of the Evidence 

CHAPTER HI- 
Discussion of the Earlier Evidence 29 

CHAPTER IV. 

DISCUSSION OF THE LATER EVIDENCE 

CHAPTER V. 

lOI 

Summary 

CHAPTER VL 

THE MARK AMONG SAVAGES; PREHISTORIC AND MODERN.... 109 

CHAPTER Vn. 

113 

The Mark in America 

CHAPTER Vni. 
The Mark in Economic Doctrine ^^^ 



. 









I. 

THE THEORY OF THE GERMANIC MARK. 

AN historical hypothesis, though it may after a 
time prove untenable, possesses at any rate 
the merit of forming a central point for investiga- 
tion and discussion. But there is a corresponding 
danger. If once it is fixed in the mind and accepted 
as standing for a reality, subsequent facts are inter- 
preted in its light and then in turn, made to reflect 

light upon it. 

Whatever may be the final word in regard to the 
essential truth of the theory of the Germanic Mark, 
it must be confessed that that theory has greatly 
stimulated investigation of the earlier economic and 
social conditions of the Teutonic race. Yet much 
remains to be done to complete the picture of our 
institutions from their simple tribal forms to the 
complex organizations of the present day. The 
mere mention of the date — 1848 — at which the 
theory may be said to have made its appearance, 
suggests alike its strength and its weakness. It 
was well-nigh inevitable that when Kemble, in that 
year, gave definite form to the "mark," he should 



2 The Mark in Europe and America. 



breathe into it the breath of freedom, and should 
throw over this creature of the distant past a veil 
of romance which some cold-blooded investigator 
must surely tear away. Still if the thing remains, 
the elements of fancy about it may well be forgiven. 
The same tendencies which prompted so attractive a 
theory secured for it a ready acceptance on the part 
of the public. When, in 1854 and subsequent 
years, Maurer ^ gave to the theory a more scholarly 
air and a more scientific aspect, all the elements 
necessary for its acceptance were present. And it 
did receive practically unquestioned acceptance for 
a third of a century, the whole force of scholarship in 
this direction being expended in elaborating, extend- 
ing, and illustrating the theory from the starting 
point of Maurer's conclusions. There was no inde- 
pendent re-examination of the whole ground, 
Maurer*s evidence with his interpretation of it, 
being not only accepted as conclusive but being 
also made the basis of a broader application of 
the theory. To a remarkable degree the theory 
fitted into certain great social movements and added 
to them the charm which Aeneas found in * seeking 
again the ancient mother/ The social reformer 



^ Georg von Maurer, Einleitung zur Geschichte der Mark-, 
Hof-, Dorf-, und Stadt-Verfassung. 1854. 



The TJteory of the Germanic Mark. 3 

found in it the support which he needed. Democracy 
had the comforting assurance of precedent. The 
land reformer saw in it a solid foundation for his 
scheme for the amelioration of the race. The hope 
of the future seemed to be brightened by this reflec- 
tion from the past. Loyalty to the cause of human 
liberty seemed to require adherence to the doctrine 
that that liberty was ancestral. The growing influ- 
ence of the Germanists received support from and 
supported a theory which glorified the freedom-loving 
spirit of the race. Not until within the last decade 
has the inevitable reaction set in, and it is but fair 
to say, that the result of that reaction has rendered 
• necessary a reexamination of the entire field. 

Nor can this examination be confined to the Teu- 
tonic peoples. For the writers who have followed 
Kemble and Maurer not only have discovered the 
existence of the mark in many other races, but 
also have seemed to suggest a new principle of 
institutional development — that the mark represents 
a phase through which the entire human race must 

needs pass. 

Professor Nasse contented himself with applying 
Maurer's conclusions to England. While admitting 1 

1 Nasse, Land Community in the Middle Ages. Translation, 
Cobden Club publication, p. 14. 



4 The Mark in Europe a7td America. 

that Kemble had not proved the existence of the 
mark associations in England, he gave a mass of 
valuable evidence in regard to the commonable 
fields, commons, and villages in England, the twa- 
field and three-field systems of cultivation, and 
communal manorial customs, which, considering the 
persistence of agrarian systems,^ in his judgment 
indicated the universal prevalence of the mark as 
the social unit in Saxon England. 

Sir Henry Maine went further. Accepting the 
conclusions of Maurer, and of Nasse,^ as established, 
without any reexamination of the evidence in the 
case, he undertook to apply the comparative method 
to the problem ; and in his Village Communities in 
the East and West (1871), he pointed out the 
resemblance of the modern village communities in 
India to the Teutonic Mark, regarding the former 
as a case of arrested development. In a later work, 
Early Law and Custom, he presented the bearing of 
the more recent Irish evidence upon the theory. 
Impressed with the wide-spread existence of certain 
phenomena among the Aryan peoples, and accepting 

^ " Agrarian relations have a tendency to a more lasting 
duration than any other human institutions." — Nasse, Lai\d 
Community in the Middle Ages, p. 11. 

2 Maine, Village Communities in the East and West, p. 11. 



The Theory of the Germanic Mark. 5 

the mark as demonstrated, he proceeded, with his 

accustomed candor and moderation, to construct a 

theory which should account for the transformation 

of the patriarchal family into the mark and the 

mark into the manor.^ Other writers brought in 

new evidence until Celts and Scandinavians and 

Sclav3, Romans and Greeks and Hindoos as well as 

Germans were asserted to have passed through this 

stage at some period of their history. Viollet found 

the institution in ancient Greece; Jubainville in 

ancient Gaul; while Laveleye identified it with the 

Mir, which he regarded as the primordial cell of 

Russian society .^ 

But Laveleye and others have wished to show 

that the mark or village community was not con- 
fined to the Aryans, but was as wide-spread as 

1 Kovalevsky credits Maine with " having first brought to 
light the truth which is now all but established, that village 
communities represent a distinct period in the social develop- 
ment of mankind, a period which ought to be placed between the 
patriarchal and feudal periods, and that therefore all endeavors 
to explain their existence among this or that people by the pe- 
culiarities of national character ought to be henceforth declared 
useless and worthless." — Modern Customs and Ancient Laws 
of Russia, p. 72. 

^ " La commune est la molecule constitutive de la nationality 
russe. . . . Seule elle est propria taire du sol, dont les 
individus n'ont que Tusufruct ou la jouissance temporaire." 
— De la propridtd et de ses formes primitives, p. 1 1 . 



( 



6 The Mark in Etirope and America. 

the human race itself.^ Savage tribes and pre- 
historic man were made to illustrate the universality 
of the institution. Mr. G. L. Gomme in The Village 
Conwiimity would place the English village com- 
munity on this new basis. 

A yet wider application for the village community 
theory was sought. It is represented as not merely 
a stage in institutional development; it is the nat- 
ural form society will take if unhampered. For 
evidence was brought forward to show its reappear- 
ance on American soil, and the inference was not 
unfair that we were coming upon the traces of a 
principle deep-seated in human nature itself.^ Re- 

^ " Aujourd'hui on peut d^montrer que ces communaut^s ont 
ne exists chez les peuples les plus divers, chez les Germains et 
dans Tantique Italie, au P^rou et en Chine, au Mexique et dans 
rinde, chez Scandinaves et chez les Arabes, exactement avec les 
memes charact^res. Retrouvant ainsi cette institution sous 
tous les climates et chez toutes les races on y peut voir une phase 
n^cessaire du d^veloppement des soci^t^s et une sorte de loi 
universelle presidant a revolution des formes de la propridt^ 
fonciere." — Laveleye, Prim. Prop., p. 2. Mr. G. L. Gomme, 
The Village Community, p. 3, says : " It must be reckoned 
with as one of the phases through which practically all man- 
kind who have reached a certain stage of development must 
have passed." 

2 Maine, Village Communities, p. 138, says that evidences 
such as *' the English settlement in North America lead me to 
think that assemblages of people planted on waste land would 
be likely to reproduce the system literally." 



The Tfteory of the Germanic Mark. 7 

move the pressure of ages of oppression, give 
human nature free scope in a new world and 
forthwith the institution reappears. So broad was 
the application of the communal principle that the 
theory seemed to be degenerating into a restatement 
of the proposition that '' man is a social animal.'' 

It was inevitable that the general acceptance of 
such a theory should change historical perspective ; 
and no one who is familiar with the pages of Green 
and Freeman is unconscious of the fact that it has 
done so. If Stubbs has shown more caution, he has 
none the less influenced the minds of his readers in 
the same direction. The economists, too, are not so 
wedded to abstract theory as not to yield to the in- 
fluence of historical dogma, — witness the use which 
was made of this dogma in the land theories of 
so classic an economist as Mill, and such radical 
reformers as Laveleye and Henry George. 

The desire for a clear understanding of the recent 
discussion of the subject must be our excuse for re- 
producing the familiar picture of the mark as drawn 
by the succession of writers who have given it form 

and coloring. 

The mark, we are told, consisted of a definite area 
of land, and upon it an organized group of families 



8 



r 



The Mark in Europe and America. 



who owned, occupied and cultivated it in common.^ 
It may be viewed in its territorial aspect, or in its 
political and economic. As a territory it was a tract 
usually separated from other similar tracts by waste 
lands. It was composed 2 of (i) the village area, di- 
vided into lots of equal size, which were assigned to 
the members of the community; (2) the arable mark 
(Feldmark), or arable land lying about the village in 
two or three fields and apportioned in holdings of equal 
size among the freemen; (3) the common mark, or 
pasture and waste land surrounding the arable, which 
was the common property of the community. Each 
family of which the mark organization was made up 
or rather each freeman, as the head and representa- 
tive of this social unit, had an equal share 3 in the 
arable land and equal rights in the common mark. 
In the earliest times the allotment of this share was 
supposed to have been made annually by lot or other- 
wise. At a later period the allotment was made for 
a series of years; and later still this system of 'shift- 

^ Stubbs, Constitutional History, I. p. 53. 

2 Morier, Systems of Land Tenure in Various Countries 
(Cobden Club Pub.), p. 279. Maine, VUlage Communities, 
P- 78. 

» " Jeder Genosse hatte gleiche Rechte an der Feldmark."— 
Maurer, Einleitung, p. 93. u Der Antheil eines jeden an den 
Garten, Feldern und Wiesen ward dem selben zugemessen und 
man nannte den ganzen Antheil das Loosgut." — Ibid. p. 7. 



The Theory of the Germa^tic Mark. 9 

ing severalties* gave place to permanent holdings. 
The ownership still continued in the community,^ 
though the theorists regard this permanence of oc- 
cupation as a step toward individual property .^ But 
the community regulated the kind of crops and 
the mode of culture.^ On the death of the holder 
his holding reverted to the community,* which 
allotted it again, — usually, it is true, to the family 
of the deceased. Pasture and woodland were en- 
joyed equitably by all members of the community 
under an officer elected for the purpose.^ The 
members of the mark-community were freemen with 
equal political rights. Maine describes them as "an 
organized self-acting group of Teutonic families."^ 
"The group," says Kemble,^ was "a voluntary as- 
sociation of freemen amply competent to all the 
demands of society, who laid down for themselves 

1 " It is a strict ownership in common both in theory and 
practice." — Maine, Village Communities, p. 79. 

2 Nasse, p. 1 1. Maine, Village Communities, pp. 80, 81, 82. 
» " In the common mark and the arable mark the individual 

is everywhere controlled by his peers."— Morier, System of 
Land Tenure, p. 281. 

*"Nul n'y exercait un droit permanent et hereditaire." — 
Lavellye, De la propridt^ et de ses formes primitives, p. ^T, 

* Maine, Village Communities, pp. 79, 99. 

* Ibid. p. 10. 

^ Saxons, I. p. 53. 



lO 



The Mark in Europe and America. 



and strictly maintained a system of cultivation by 
which the produce of the land on which they settled 
might be fairly and equally secured for their service 
and support." And again, "The markmen, within 
their own limit, were independent, sufficient to their 
own support and defence, and seized of full power 
and authority to regulate their own affairs." Together 
the freemen constituted the legislative body ; together 
they composed the common court ; together they ex- 
ercised a common proprietorship over the entire 
mark. Every freeman ^ had an equal voice in the 
common courts and councils. Maine describes the 
manorial group as succeeding a "group of house- 
holds of which the organization and government were 
democratic." ^ It was a pure democracy practicing 
a strict agrarian communism.^ But along with this 
asp~ect of the freeman as "commoner," it must be 
remembered that he also exercised the functions of 
" lord." * Within his own home and house-yard he 

1 Green poetically describes him as " the free-necked man 
whose long hair floated over a neck that had never bowed to a 
lord." — Making of England, p. i73- 
^ « English Village Communities, p. 134. 

» » The typical principle of the Teutonic law was ' the land 
held in common.' " — Kemble, Cod. Dip. Intro., p. iv. 

« Morier, Land Tenure, p. 281. Maine, ViUage Communi- 
ties, p. 82. 



TJu TJieory of the Germanic Mark. 



II 



was supreme.! Even if we can not agree with Sir 
Henry Maine that the power of the freeman in his 
own household was practically the ' patria potestas,' 
yet he had undisputed control of his house, his 
family, and his servants; and it is worth while to 
note that we have thus co-existing the extremes of 
despotic patriarchal government in the family and 
of democratic government in the community. 

The mark is presented to us as a fundamental in- 
stitution of the Teutonic race. Kemble says, " This 
is the original basis upon which all Teutonic society 
rests." 2 And again, " However far we may pursue 
our researches into the early records of our fore- 
fathers, we cannot discover a period at which the 
organization was unknown. ' ' ^ According to Maurer, 
«' The associations of the mark are bound up with the 
primitive cultivation of the soil ; they can be traced 
back to the earliest German settlements, and in all 
probability once occupied the whole of Germany." * 

1 «' Von jeher war namlich der freie Germane in seinem 
Hause und in seiner Familie sein eigener H err." — Maurer, 
Einleitung, p. 239. Maine, Ancient Law, p. 13S; Early Law 

and Custom, p. S7- 
« Saxons, I. p. 53. 

» Ibid. p. 37- , , 

* As quoted by Fustel de Coulanges, Mrs. Ashley s transla- 
tion, Origin of Property in Land, p. 4- In Maurer's theory, of 
course, provision is also made for single farmsteads. But he 
regards these as comparatively unimportant. 






i 



\ ' I 




12 



Tlie Mark in Europe and America. 



Maine declares that '' it is well known to have been 
the proprietary and even political unit of the earliest 
English society." ^ And again he refers broadly to 
*' countries like Germany and England, where the 
cultivated soil was in the hands of free and fully 
organized communities/' ^ 

The mark has not been presented to us as existing 
alongside of other political and territorial institu- 
tions, but as the fundamental institution out of 
which or upon the ruins of which later institutions 
arose.3 Yet it is not an institution of the savage 
or nomadic nor even of the pastoral stage. It is a 
phase of economic development succeeding these, 
and of political development succeeding the strictly 
patriarchal and tribal forms of society. It is, of 
course, closely connected with these; but the tie 
which binds the members of the community to- 
gether is territorial and no longer that of kinship.* 

1 Village Communities, p. lo. 

2 Ibid. p. 132. 

« " Every Teutonic community has been evolved out of a 
germ identical in its rudimental construction with that of 
every other." — Mori er, Systems of Land Tenure, p. 243. 
" The original Teutonic community is an association of free- 
men, a * Gemeinde,' a commonality or common." 

-* " From the moment when a tribal community settles down 
finally upon a definite space of land, land begins to be the 
basis in society instead of kinship." — Mame, Early History of 



Tlie Theory of tJie Germa^iic Mark. 1 3 

Local contiguity, and finally the area of land 
occupied becomes the basis of the group. It is 
explained that from the earliest settled agricultural 
state Teutonic society assumed the territorial and 
political aspects set forth by the mark theory; and 
that it continued under this mode of organization 
until through internal and external influences the 
mark became the manor, the town or the city, and 
private property in land became the rule. By war, 
by the abuse of official trust, and by the encroach- 
ments of the powerful, wealth and power accumulated 
in the hands of a few, and the feudal system became 
dominant. It thus became a favorite problem of 
constitutional and economic historians to determine 
**how the mark became the manor." The pop- 
ular theory^ was that some social earthquake, 

Institutions, p. 72; cf. also Allen, Monographs, p. 233. "The 
original Teutonic community is an association of freemen 
amongst whom the private right of property in land is correla- 
tive to the public duty of miUtary service and participation in 
the legislative and other political acts of the community." — 
Morier, Land Tenure, p. 279. " The tie of blood, however, was 
widened by the larger tie of land." — Green, Making of Eng- 
land, p. 1 84. " The cement binding the whole group has prac- 
tically changed from kinship to land." — Gomme, p. 64. How- 
ard, Local Const. Hist. U. S., emphasizes kinship in the 

mark. Vol. L p. 14. 

1 " Mr. Blamire appears to have unreservedly adopted the 
popular theory on the subject, which I believe to be that at 



i 



4 






14 The Mark in Europe and America. 

such as the Norman conquest in England, had 
overthrown this communal and democratic organi- 
zation of society, and had imposed on the free vil- 
lage community a regime of private property in land 
and feudal despotism. It was asserted or implied 
that the entire soil was confiscated and the freemen 
reduced to serfs. But modern science looks with 
doubt upon theories which rely upon sudden and 
great disturbances to account for phenomena, and an- 
other theory, more in accordance with modern views 
of evolution, has become generally accepted, viz., that 
the mark had within itself the germs ^ of the feudal 

some period — sometimes vaguely associated with the Norman 
conquest — the entire soil of England was confiscated; that the 
whole of each manor became the lord's demesne; that the lord 
divided certain parts of it among his free retainers, but kept a 
part in his own hands to be tilled by his villeins; that all which 
was not required for this distribution was left as the lord's 
waste; and that all customs which cannot be traced to feudal 
principles grew up insensibly through the subsequent tolerance 
of the feudal chiefs." — Maine, Village Communities, p. 84. 
It is well known, however, that this was the generally accepted 
legal theory. 

1 " In England before the Norman conquest the Feudal 
System most certainly did not exist. There was no systematic 
feudahsm, but the elements of feudalism were there." — Free- 
man, Norman Conquest, I. p. 91. "By these means (such as 
the conquest) the old system of the free Teutonic community 
gradually died out in England, as it died out in all parts of the 
continent." — Ibid. I. p. 96. 



The Theory of the Germanic Mark. 1 5 

system, that the change came slowly under the in- 
fluence of internal forces and was only hastened by 
external forces.^ Possession of the house-lot in the 
village mark first hardened into property ; then the 
permanent allotment in the arable ; ^ last of all the 
common mark became private property, through 
continued encroachments of a lord or its seizure by 
the king. But whether the change came from within 
or without, the end was the same, viz., the destruc- 
tion of the liberty of the masses, the robbing 
them of their common right to the soil, the substitu- 
tion of private ownership of the land by the lord for 
community of ownership by the people. But the 
old order had left its traces deep in the soil, and 
in the methods of cultivation, and in the communal 
rights, usages and laws of the people. 




i 



Let us ask ourselves now what are the essentials 
of this theory of primitive Teutonic society. 

First and most important is community of prop- 
erty. The theory on this point is not always clearly 
stated. At one time the land is said to be owned by 
the entire village community ; again it is alleged that 

1 Maine, Village Communities, pp. 84, 132, 145. 

2 " Private property first came into vogue with arable land." 
Nasse, Land Community in Middle Ages, p. 11. 



i\ 



1 6 The Mark m Europe ajid America. 

there is no ownership, merely undisputed possession 
by it as an organized group. The manner of state- 
ment matters little; in all cases ownership or pos- 
session is communal, and private property is non- 
existent. It must not be forgotten that this ownership 
by the mark is distinctly different from family 
ownership. It represents a different stage from 
that in which the family is the proprietary unit. It 
is true that, according to the theory, holdings are 
distributed to the families as represented by their 
heads, the freemen. But the ownership, if such it 
may be called, remains with the community. Nor 
is it the same as joint ownership. The mark was 
not a company of which the individual markmen 
were the members and of whose property they were 
co-proprietors. The units of which the mark was 
composed became vested with no proprietary rights 
which they might sell, donate, or bequeath. When 
the holder of a portion of the arable and rights 
of common died, the holding reverted to the com- 
munity and was again allotted. 

The second essential feature is that of freedom 
and self-government. Slavery may have existed, 
but the mass of the people were free. 

The third essential feature is the substantial 
equality of the markmen. All members had 



Tlie TJuory of the Germanic Mark. 1 7 

equal political rights and privileges. And it was 
the equality of sovereigns. Together they made 
the simple laws and administered the simple justice 
which such a state of society required. The same 
equality extended to the holdings of land and rights 
of pasturing stock and feeding pigs and gathering 
wood in the forest. The manifest and intentional 
tendency of this arrangement was toward equality of 
possessions and social standing, though some writers 
have admitted that there were grades of wealth and 

rank. 

Teutonic society, then, began in free self-governed 
communal organizations whose members enjoyed a 
substantial equality: it did not begin in serfdom 
nor under a regime of individud ownership of land. 
What strikes one at first in this theory, apart from 
a certain air of artificiality, is its resemblance as a 
scheme of social organization to certain conceptions 
that had once been thouglit the product of a later 
age. Its democracy, its individualism, and to a 
certain extent its communism are very like nine- 
teenth century ideals. The next thing that im- 
presses one is its unlikeness to what preceded 
and what followed it. Succeeding the despotism 
of the patriarchal family and preceding the despotism 
of the feudal lord is a long period of democratic gov- 






1 8 The Mark in Europe and America. 

ernment. One thinks of the geologist's "dike/' 
where through the fissure in the stratum there has 
been thrust a vein of mineral of another kind. 
Even during the existence of the village community 
in its typical form there is a striking contrast 
between the ideas which prevailed in the family and 
those which are associated with the mark. Within 
the family, ov/nership is centered in one, the head, 
and ideas of personal subjection and slavery are 
dominant ; within the mark, ownership is absent, and 
perfect freedom and equality reign. Yet, Sir Henry 
Maine has assured us that there were in the patri- 
archal family inherent tendencies toward such 
an institution as the mark, and that there were 
in the mark 'ineradicaV tendencies toward feudal- 
ism.^ 

If one were asked during what period, among 
Teutonic peoples, this institution existed, it would 
be impossible to answer definitely on the authority 
of those who have introduced it into our history. 
Yet one might say broadly, from the first permanent 
occupation of a definite area of land by the Germanic 
tribes, previous to the times of Tacitus and Caesar, 
down to the Norman Conquest. While it has been 
asserted that many of its striking features had ceased 

1 Ancient Law, p. 130. Village Communities, pp. 21, 130. 



The Theory of the Germanic Mark. 19 

to exist long before that date, yet many projected 
themselves far beyond it. 

In endeavoring thus to gather up the elements of 
the mark theory and to present it with definiteness 
as to form and time, there has been given to it a 
certain artificiality which it did not have in the minds 
of those who have written upon it. Yet it seemed 
impossible to form a clear an^ faithful picture which 
should be wholly free from this fault. 




Nature of the Evidence. 



21 



II. 



NATURE OF THE EVIDENCE. 

"^OW let us inquire upon what evidence the 
theory of the Teutonic mark was based. It is 
of two kinds, (i) documentary, and (2) that to be found 
in the soil itself and in the local usages and laws of 
communities existing at the present day. Or perhaps 
we would better divide it into the earlier and the later 
evidence; the former being wholly documentary and 
covering the period, roughly speaking, from Caesar 
on down well into the middle ages ; the latter covering 
both the later documentary evidence which might 
throw light upon early conditions, and the survival in 
the soil itself, such as open fields and commons, and 
in local law and custom, of the earlier order of things. 
It is legitimate to regard these as the debris of an 
ancient system and from them to reconstruct that 
system. 

The earliest documentary evidence is found in the 
meagre descriptions of Germany and the Germans 
given by Caesar and Tacitus, the latter writing 
at the end of the first century and the former a 
hundred and fifty years earlier. As this is the 



earliest evidence, it is of great importance, since 
the interpretation of the later evidence will be 
affected by the mental picture formed of the con- 
ditions there described. A blank of three centuries 
follows where no evidence for or against the theory 
is to be found. From the 5th century forward light 
is thrown upon the continental conditions by the 
laws of the various Germanic and Prankish peoples, 
and by the whole body of charters and similar docu- 
ments from the 8th century onward; while on the 
English side we have chiefly the evidence of the 
remnants of Anglo-Saxon Law from Ethelbert for- 
ward, and the collection of Anglo-Saxon charters 
and documents from the 7th century till the Con- 
quest. The same body of evidence is to be appealed 
to by those who seek to establish and those who 
deny the existence of the Teutonic mark. It was to 
this Maurer appealed, and it was in the light of this 
that he interpreted the later facts. It might be 
remarked that his immediate followers, so far as the 
earlier evidence is concerned, trod in his footsteps, 
turning neither to the right hand nor to the left. 

The later evidence is much more abundant. There 
is abundant material in regard to the village commu- 
nities of the I ith and 12th and later centuries. On 
the English side there is no lack of documents from 



1 



22 The Mark in Europe afid America. 

Domesday onward, through manorial ^extenta,' par- 
liamentary rolls, court records, ecclesiastical records, 
manorial accounts, chroniclers, law books, etc., and 
in more recent times in the enclosure acts and the 
transactions of commissions under them ; and finally 
there are proofs of an earlier and different order of 
things which are left on the soil and in the enjoy- 
ment of certain communal rights and privileges. In 
judging of this evidence allowance must be made for 
the "personal equation." Here as elsewhere one 
is likely to see what he expects to see. If one 
approach the evidence with the mark in his mind 
he is apt to find the mark in the evidence. 

The dangers of the method of reconstruction from 
historical remains, just referred to, have been so fre- 
quently pointed out, even by those who have straight- 
way fallen into them, that it is scarcely worth while 
to suggest the careful scanning of the inductions so 
made. The common enjoyment of privileges, joint 
labor, equality in the size of holdings, cooperation in 
cultivation, the mutual helpfulness of neighbors, are 
not sufficient grounds for the induction of communal 
ownership and equal and sovereign political rights. 
Every log-rolling, house-raising, corn-husking, apple- 
paring and wool-picking that has taken place in 
America cannot be taken as evidence of the pre- 



ki 



Nature of the Evidence. 



23 



existence in the Anglo-Saxon race of the Germanic 
mark. The ''ye-ho-ho** of the negro roustabouts on 
an old Mississippi steamer, as they tugged together 
at the line, was a good example of community of ac- 
tion and of a certain equality, but was proof neither 
of freedom nor of the common ownership of any- 
thing. In truth, the best example of equality and 
of community of cultivation that has been witnessed 
in America was to be seen on the great southern 
plantations before the civil war. 

Oh the other hand it is not sufficient proof of the 
absence of political freedom to show the existence of 
wealth and rank and the dependence of the poor. It 
is not quite proof that men were bound to the soil as 
serfs to be assured that they were virtually unable 
to move from place to place, and were virtually at 
the mercy of the rich and powerful. All these may 
be found to-day, among those who are supposed 
to possess a high degree of political freedom and 
political equality. Indeed the question seems too 
sharply put when it is stated, " Did Teutonic civili- 
zation have a free or a servile origin.'^** as though 
the whole truth must lie in the one or the other of 
these two words. To answer categorically the ques- 
tion, *Were our ancestors serfs, or freemen.'^' we 
must inevitably modify our conceptions of the terms. 



f=i 



m^t^imm^^0^m 



24 T/ie Mark in Europe and America. 

Witb this statement of the mark theory, as almost 
universally accepted, and with this caution with - 
regard to the evidence bearing on the case, we are 
in a position to apply ourselves to the more recent 
discussion of the theory. This is of two kinds: 
that which aims directly at supporting or attacking 
the theory, and that which simply seeks to discover 
the economic and political conditions of the period 
involved, regardless of its bearing upon any particular 
theory. The two methods cannot be wholly sepa- 
rated; both aim at the same end and are, for the 
most part, conducted in the same spirit. The grave 
doubts cast upon the theory by the first method 
naturally led the way to the second. 

From two directions and almost at the same time, 
and yet without any concert of action, came the 
attack upon the mark theory, as propounded by 
Maurer and his disciples. And yet we seem to mis- 
represent the admirable attitude of these investi- 
gators by describing their work as an attack. 

These lines of approach correspond to the nature 
and method of the evidence adduced in its support. 
The one line was from the earliest period downward, 
and dealt exclusively with the documentary evidence 
during the supposed existence of the institution; 
the other was from the present upward toward the 



Nature of the Evidence. 



25 



;i 



sources, from the known to the unknown, and dealt 
with the evidence yet remaining in the land and 
people, as well as in the abundant documents cover- 
ing the period since the mark was supposed to have 
been overthrown by feudalism. The two lines met 
and formed one. It is not overstating the results of 
this work to say that it necessitates a newer and 
truer statement of the social and economical devel- 
opment of the race. 

The two names which stand as representatives of 
the two lines of attack upon the mark theory are M. 
Fustel de Coulanges and Frederick Seebohm. Both 
brought to the task an eager zeal to discover the 
exact truth, and the results of patient and inexhaust- 
ible research and vast learning. The former is 
sharper* and more controversial in his method, and 
gives one the impression of making a more critical 
analysis of his text than the author of the text made 
when writing it. The latter is conservative, cautious, 
sometimes almost over-prudent in stating a conclu- 
sion.i Though Seebohm's work was published first, 

^ An example of this caution is to be seen in his argument in 
regard to the open field system in England and in Germany, 
which has led some to suppose that Seebohm assigns a South 
German origin to the Saxon settlers of England. Cf. Prof. 
Ashley's Criticism of Andrews' "Old English Manor," Pol. 
Sci. Quarterly, March, 1893. 



II 



11 



26 The Mark in Europe and America. 

we will speak first of that of M. Fustel de Coulanges, 
since that deals with the earlier evidence. 

It was twenty-one years after the appearance of 
the Citi Antique, itself a work of profound scholar- 
ship, that M. Fustel de Coulanges gave to the 
world the results of his investigations on the alleged 
primitive agrarian communism of the Teutonic race. 
Some hints of his attitude on the question had 
previously appeared in the reviews, but it was not 
fully understood until in 1885, when the ^'Recherches 
sur quelques probllntes dliistoire " was published. 
Nineteen years, he informs us in the preface,^ had 
been devoted to the study of the feudal regime, fol- 
lowing the same methods which he had employed 
in the twelve preceding years in the study of the 
Greek and Roman constitutions, and his works cer- 
tainly display a marvelous acquaintance with the 
medieval documents. We are informed « that he 
had studied pen in hand all the Latin texts from 
the 6th century, B.C., to the loth century, a.d. 
Filled with the true spirit of the scientific method,^ 
and impressed with the fundamental importance of 

1 Preface, p. i. 

2 Elton, English Historical Review, 1890. 

8 "Mais j'ai toujours cru que le commencement de la 
science historique ^ait de douter, de verifier, de chercher.' - 
Recherches, p. 1 89. 



Nature of the Evidence. 27 

an understanding of the primitive conditions as to 
the ownership of land 1 in order to a clear compre- 
hension of the social and political constitution of 
the people, he set himself to the task of a minute 
survey of all the documents which might throw 
light upon the subject, and the formation of a judg- 
ment upon the whole, not merely upon isolated 
parts of texts, which, while they might strengthen 
a position could not contribute ultimately to the ad- 
vancement of historic science. In the LAlleu et 
le Domaine Rural (1889), the author attempts a 
more constructive study of the history of institu- 
tions.2 In a long article contributed to the Revtce 

1 " En tout temps et en tout pays, la mani^re dont le sol 
^tait poss^d^ a ^t^ Tun des principaux dements de I'organisme 
social et politique." — L'Alleu et le Domaine Rural, Introduc- 
tion, p. iii. " La possession du sol n'est jamais une chose isol^e. 
La propri^t^ est un fait social que depend d'autres faits sociaux 
et dequel ceux-ci dependent."— Recherches, p. 248. 

2 Glasson has attempted to reply to certain strictures upon 
him made by Fustel in this volume, relating more particularly to 
the village community and communal land ownership in ancient 
France, in a volume entitled Co7nmunaux et le domaine rural 
a rdpoque Franque, M. Glasson regards the abundant evi- 
dences of private property as due to the Roman influence; and 
he contends, without, however, adducing any evidence, that the 
language of the texts implies the presence of the free self- 
governed village communities, and seems to believe that these 
are the typical forms of social organization, and that they 
slowly gave way before Roman power and Roman ideas. 






I 



28 TJie Mark in Europe and America. 

dcs questions historiques, for April, 1 889, he sets 
forth in a more condensed form the substance of 
his investigations in regard to the Germanic mark 
— an essay which has been recently given to us in 
English dress under the title of "The Origin of 
Property in Land/' ^ 

1 Translated by Mrs. Ashley, with an introduction (summa- 
rizing M. Fustel's conclusions and applying them to English 
history), by Professor Ashley (1891, 2d ed. 1892). 



III. 






DISCUSSION OF THE EARLIER EVIDENCE. 

T ET us now look at the earliest evidence. And 
since Tacitus describes the Germans more 
at length than Caesar, let us begin with him. It 
would aid us greatly in estimating the value of the 
evidence from Tacitus if we knew the exact sources 
of information upon which he bases his description ; 
whether this part was from actual observation, that 
part from Caesar, and the other from travelers' 
tales. But that is out of the question, of course, 
so we can only assume that his information on the 
whole had a certain degree of exactness. The 
question then for us to consider is, " Does Tacitus 
present to us the Teutonic mark } Do we find in 
his writings, supposing them to present correctly 
the facts in the case, the picture of a social organ- 
ization characterized by democracy, equality and 
agrarian communism, such as we have been told 
was the fundamental institution of Teutonic so- 
ciety.?" Taking the description of Tacitus as a 
whole, one must admit that he does not find such 
a picture of *' primitive democracy.*' Kings, chiefs, 



30 TJie Mark in Europe and America. 

priests, nobles, freemen, freedmen, serfs, and slaves 
appear on every page of the description.^ Rank 
and noble birth are held in high honor, and are used 
as the means of acquiring more power ; moreover, 
amons: the followers of those who have been selected 
as chiefs on account of their noble birth there are 
CTadations of rank.^ Indeed it is true, as one of 
the advocates of the mark theory has beep con- 
strained to ^dmit, that " as far as the eye can pene- 
trate into the gloom of the earliest traditions, blood 
is privileged/' 3 Not only does Tacitus reveal to 
us the existence of a slave class, but he tells us 
that freemen may become slaves,^ and slaves may 
become freedmen. Slaves may be sold,^ or be- 
queathed.^ The freedmen, we are informed, do not 
rank much above slaves.^ Then he gives us a 
glimpse of a slavery, which presents a remarkable 

1 See Germania, §§ 5, 7, lo, ii. ^2, 13, 14, 15, 25, 32, 44, 
45, 46. " Reges ex nobilitate, duces ex virtute sumunt." — 
Germ. 7. " Insignis nobilitas . . . principis dignationem etiam 
adolescentulis assignant." — Germ. 1 3. " Sed ob nobilitatem." 

Germ. 18. "Inter obsides puellae quoque nobiles imper- 

antur." — Germ. 8. 

2 Germ. 13. 

8 Morier, Local Government and Taxation (Cobden Club), 

p. 362. 

4 Germ. 24. * Ibid. 25. 

6 Ibid. 24. ^ Ibid. 25. 



Discussion of the Earlier Evidence. 31 

likeness to serfdom of the Middle Ages.^ After 
speaking of the slaves that are bought and sold, 
he says, ** They do not use the rest of their slaves 
like ours, in various employments in the family. 
Each slave controls his own house and home.'' And 
then he goes on to tell us that he renders to his 
lord grain, cattle, and cloth ^ — payments in kind just 
as we find at a later day. Now what proportion did 
these slaves, serfs and freedmen, with their families, 
bear to the whole population.? We do not know. 
No doubt they were a large and growing class. We 
are able to infer that the cattle raising, and the 
tillage — indeed all agricultural and domestic labor 
— was in their hands; and that their number would 
be likely to increase faster than that of their mas- 
ters, whose occupation was war. For, note the char- 
acter of the noble freemen.^ '* When they are not 
engaged in war, they pass their time less in hunting 
than in sluggish repose, given up to eating and sleep, 
each bravest and most warlike one doing nothing, 
having committed the care of his house, his family 
affairs, and his land to the women, the old men and 
to the weaker domestics.** Now fill in the picture 
of this warrior freeman, with his house and his land, 
his slaves and his serfs, and, in case he be of great 



1 Germ. 25. 



2 Ibid. 15. 



I 

I 






32 TJie Mark m Europe and America. 

rank or prowess, a following of freemen warriors 
who have devoted themselves to his service. Can 
this be fitted into an ideal Teutonic mark ? It is to 
be remembered, too, that this section is not describ- 
ing the German war chief, but the ordinary German 
freeman. 

Tacitus describes a regime of private property, — 
at least in movables. Barter, gifts, fines, and in- 
heritances are evidences of this. '* Wealth, too, is 
honored among them.'* ^ The war chiefs are distin- 
guished by presents,^ and are expected to bestow 
costly presents on their followers,^ which would not 
be possible except on condition of the possession 
of great wealth. Such wealth, of course, consisted 
largely of the booty taken in war. It may not be 
possible to prove that there was ownership of land, 
but the evidence points very strongly in that direc- 
tion. It is mentioned as a remarkable and excep- 
tional fact that there is a certain class of men among: 
the Chatti,^ who wear long hair and devote them- 
selves to war, " to no one of whom is there a house, 
or an ager, or an occupation,'' and who live off their 
fellow tribesmen. Notice that the ager is put in 
the same category as the house. Whatever it was, 

^ "Est apud'illos et opibus honos." — Ger. 44. Cf. id. 21. 
2 Germ, 13. « Ibid. 14. -* Ibid. 31. 



Discussion of the Earlier Evide^tce. 33 

it was supposed to belong to a single individual. 
Again, in section fifteen, we are told that "the care 
of his house and his penates and his agrV' ^ had been 
left by the freeman to the women, old men and ser- 
vants. Whatever the agri were, they belonged to a 
single individual. In another section ^ certain men 
are spoken of who worked, or, as we should say, 
farmed the Decumate agros,^ The forty-sixth section 
tells us of the Fenni, the most savage and poverty- 
stricken of all the Germans, who live like wild 
beasts. And yet, says Tacitus, they think them- 
selves happier than those who "groan over their 
agri^ toil over their houses, and place their own fort- 
unes and those of others between hope and fear." 
The other cases in which Tacitus uses the word agri 
in the Germania we will mention presently. The 
evidence which these illustrations offer of the owner- 
ship of land is strong, but stronger still is it when 
woven into the whole structure of wealth and rank 
and power which the entire description of Tacitus 
presents. The predominating influence of the chiefs 
in public concerns is clearly set forth.^ In some 

^ " Domus et penatium et agrorum cura." 
2 Germania, 29. 

• Lands in S. W. Germany along the Rhine, lately assigned 
by the Romans to colonists on condition of a payment of the 
tenth, whence their name. 

* Germania, 11. 



ii' 



34 The Mark in Europe and America. 

cases, the rulers rule without any restriction.^ Nor 
are all the chiefs elected by a popular vote. They 
gather about them a personal following. It is not 
the vote of the whole body of freemen that makes 
any man a war chief; it is his winning the admira- 
tion and attachment of single followers; and it is 
the free choice of the single follower that makes him 
a follower. 

If this is the condition of things which Tacitus 
reveals to us, where is the evidence for the mark } 
It is found almost exclusively in the interpretation 
of the few well known and much discussed lines, 
*^Agri pro mcmero ctiltorum ab tmiversis in vices oc- 
cupantiiry qiios mox inter se secundum dignationem 
partiuntur; facilitatetn partiendi camporum spatia 
praestant. Arva per annos mutant; et superest 
agery ^ Maurer.says that ager meant ager pub- 
licuSy 3 public lands ; and that that meant the mark 
which was owned by all in common. If Tacitus had 
meant ager publicus, he would have said ager pub- 
licus. Tacitus uses ager in the Germania six times. 

^ Germania, 44. 

2 Ibid. 26. 

« Maurer, Einleitung, p. 84 : " Tacitus nennt dieses unge- 
theilte Land ager, das heisst wohl ager publicus im romischen 
Sinne des Wortes. Im Norden Europas nannte man es sehr 
richtig die Gemeine ; das heisst, ungetheilte Mark oder auch 
das Gemeineland." 



Discussion of the Earlier Evidence. 35 

We have already cited the other four, in no one of 
which it could possibly mean ager publicus. In all 
of them it plainly means an individual property. If 
we were to substitute our American word ^'farm'* 
in each of the four cases, there would be no jar in 
the sense. Nor would there be here in thus render- 
ing agri. ^ But whatever may be the rendering of 
this much disputed passage, there is no proof in the 
text of communal ownership. There is proof of in- 
equality among the persons, secundum dignationem^ 
and in the possessions, agriy which each received. 
There is no proof in the text, nor anywhere else in 
Tacitus, of annual allotments. There is no proof of 
common cultivation by a free village community. It 
must be confessed, that, notwithstanding the dis- 
puted meaning of the passage, it hardly required 
on the part of Fustel de Coulanges the citing of 
thirty passages from Cicero, besides passages from 
Cato, Varro, Livy, Columella, and the jurisconsult 
Ulpien, to show that Maurer's rendering ager^s ager 
publicus — common land — mark, was unwarranted. 

1 Perhaps it means something like this : " Agri are occu- 
pied in turn by the whole body of cultivators, in proportion to 
the number of cultivators ; " that is, the more cultivators, the 
more agri are occupied. " Forthwith they divide these (the 
agri) among themselves according to rank or dignity," i.e. 
those of the highest rank get the choicest agri. 



36 The Mark in Europe and America. 



Discussion of the Earlier Evidence. 37 



„ 



Its use by Tacitus himself would have been 
sufficient. More important than this negative criti- 
cism is the positive evidence he adduces for the use 
of ager for private estate,^ a position which might 
have been strengthened by the citation of its use in 
the Germania already referred to. 

The picture, so far as cultivation is concerned, 
which is presented to our mind by the passage, 
''arva^ per amios mutant,'' *^they change the culti- 
vated lands in the course of years,*' is quite similar 
to that which was to be observed in the southern 
states in the earlier part of this century. It was a 
necessary incident of the " extensive '* cultivation in 
which the proprietors of great estates with their 
gangs of slaves '* cropped " one piece of land till it 
was exhausted, and then, in the course of a few 
years {per annos), changed the cultivation to fresh 
ground, throwing out the part previously cultivated, 
as ^'old fields.'* 3 Among the Germans land was 
plenty {stiperest ager), they did not cultivate deeply, 

1 Recherches, p. 275. Origin of Property in Land, p. 7. 
Mr. Denman Ross also takes a similar position in regard to the 
use of ager. See Early History of Land Holding Among the 
Germans, p. 4, and elsewhere in Mr. Ross's writings. 

2 "Arva" is used in contrast with "agri." 

* It is not intended to imply that the " picture " formed is 
that of estates worked by slaves, but merely that the system 
did not permit the permanent cultivation of the same area. 



nee eniin cum tibertate soli labore contendimt, and 
in consequence did not continue year by year to 
cultivate the same arable land. Even if per annos is 
to be read "every year," ^ there is no reason to sup- 
pose that they exchanged with each other the areas 
cultivated, in the face of the fact that land was so 
abundant, but merely that they gave one piece of 
land a rest while they cultivated another. The 
language is certainly not that which would have been 
used if it had been meant that they exchanged culti- 
vated strips with each other.^ The translation of 
the entire passage, ''Agri pro mimerOy' etc., is suffi- 
ciently difficult and unsettled, but ■ it does not seem 
possible to prove either annual allotment, joint culti- 
vation, communal ownership of land, equality among 
the members of the community, or even the exist- 
ence of the mark itself from evidence so scanty and 
so uncertain in meaning. 

Certainly the entire picture of Tacitus, with its 
slavery, its serfdom, its inequalities of rank, wealth 

1 Tacitus makes frequent use of the expressions " per singu- 
los annos," " singulos per annos," " in singulos annos," when 
he means ** every year." Such an expression, or " quotannis," 
he would doubtless have used here had he meant annually. 
As the years go by they shift the arable to fresh ground, is 
evidently what is meant. Cf. also Caesar's use of " in singulos 
annos" when he means annually. — De Bel. Gal. VL 22. 

2 Tacitus would at least have used " inter se,'^ 



38 The Mark in Europe and America. 

and power, lacks the elements of freedom, self-govern- 
ment and equality which we have been led to expect 
in the mark. Neither the communism nor the simple 
democracy are borne out by the texts. It is not pre- 
tended that there was no democratic element in early 
German society. There was such an element. Yet 
that society was permeated with inequalities. Under 
the free was a servile cultivating population, how 
great in numbers we do not know. There is no proof 
of the absence of property in land. On the other 
hand, the very absence from Tacitus of pointed ex- 
planation of so remarkable a difference from the Ro- 
man system as the non-ownership of land would be, 
the spirit of the laws in regard to inheritance among 
the Germans, together with divers minor hints in the 
text itself, render it strongly probable that, as soon 
as the tribes settled down to a regularly agricultural 
life, there existed private ownership of land, or at 
least the permanent possession of a more or less defi- 
nite area which its owner either cultivated himself or 
by means of a group of servile dependents. Indeed, 
that scholarly critic, the late Prof. W. F. Allen, of 
the University of Wisconsin, who accepted the mark 
theory, was forced to admit ^ that it had not been 
proved that the mark was to be found in Tacitus, — 

1 Monographs, p. 229. 



Discussion of the Earlier Evidence. 39 

in fact that it did not exist in Tacitus' time, though he 

was of opinion that it came into existence soon after. 

Nor, if we turn to Caesar a hundred and fifty years 

earlier, do we find it there. It is hardly possible so to 

interpret Caesar's brief sketches of what he saw and 

heard of the Germans along the border, as to find 

there the mark. Whether it be in his descriptions 

of Ariovistus and his followers, who boasted^ that 

they had not been under a roof for fourteen years, 

or in his description ^ of certain tribes in perpetual 

war, of which one part is put to raising crops one 

year and the other sent to war, exchanging places 

for the next, or in his description ^ of the chiefs 

arbitrarily assigning lands and *' compelling " the 

tribes to move from place to place, there is no hint 

of the democratic simplicity of the mark theory, nor 

of a settled agricultural occupation or ownership of 

a definite area of land ; but there is a picture of 

1 De Bello Gallico, Lib. I, § 36. 

2 Id. Lib. IV, § I. 

« Caes. De Bel. Gal. II, 22. " Neque quisquam agri 
modum certum aut fines habet proprios ; sed magistratus ac 
principes in annos singulos gentibus cognationibusque homi- 
num, qui una coierunt, quantum et quo loco visum est agri 
attribuunt, atque anno post alio transire cogunt." It is to 
tribes and clans that lands are assigned. Here is the essence 
of arbitrary government. The chiefs and magistrates assign 
what they please and compel obedience. 



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40 The Mark in Europe and America. 

unsettled tribes engaged in perpetual war. They 
were "juet emerging from a nomadic condition, 
since they had not secured settled homes/' as Cun- 
ningham puts it.i They were still in the tribal 
state. It is obvious that the mark which we have 
been looking for is not in Caesar. 

If we do not find this group of self-governing 
freemen, endowed with equal rights and enjoying a 
common and equal possession of the soil, in Caesar 
and Tacitus, neither do we find it in the next three 
centuries, for they are as barren of proofs of its 
existence as of its non-existence. Evidences of its 
existence must next be sought in the body of Ger- 
man law. But it is precisely in this and in the 
other documents of the succeeding centuries that 
abundant proof of the existence of private property 
in land and landed estates, with a dependent popu- 
lation of cultivators upon them, is to be found; 
while the evidence for the non-existence of a self- 
governed group practicing communal ownership of 
land is correspondingly strong. The advocates of 
the mark theory, as M. Fustel points out, have 
placed great stress upon the existence of the word 
''mark,'' and yet they are able to cite no document 
1 Growth of Eng. Indust. and Commerce, I, p. 26. 



Discussion of the Earlier Evideitce. 41 

in which it means a territorial group earlier than 
the 1 2th century. They argue from the use of the 
word in the 1 2th and following centuries that many 
centuries earlier, that word must have been used to 
describe a self-governing communal organization.^ 
''And yet," says M. Fustel, *^if we seek in the 
ancient writers of the first centuries of the Middle 
Ages, a phrase which tells us that the inhabitants 
of every village held a territory in common, or any 
similar phrase, we shall not find it." 2 jhe advo- 
cates of the theory would perhaps not be disposed 
to deny, what is undoubtedly true, that the primary 
signification of the word was a sign, mark, or 
boundary. In all the earlier texts it is thus used 
to distinguish objects possessed by one person from 
those possessed by another, the boundary line or 
limits of governments or estates. It is used as an 
exact synonym of terminus^ 

1 " Les auteurs ne citent aucun texte ant^rieur au douzi^me 
si^cle, mais tout leur syst^me est fond^ sur ce raisonnement; 
Les textes du douzi^me si^cle et des ^poques suivantes montrent 
que la mark est une terre indivise entre les habitants d'un vil- 
lage ; or ce mot mark est tres ancien dans la langue germani- 

que ; done I'indivision de la 7nark est infiniment ancienne." 

Recherches sur quelque problemes d'histoire, p. 322. 

* Recherches, p. 321. 

* Thorpe, who, by the by, does not seem to have suspected 
the existence of the mark community, gives the same explana- 



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42 Z;^ Mark in Europe and America. 

M. Fustel calls attention to the fact that in the 
earliest place in which the word is cited (by Sohm) 
viz., the Edict of Chilperic (anno 574) it is on a 
supposition that the word marias of the text should 
read marcas, and that it should be translated "the 
associates of the mark'' ; and that in the first place 
where the word actually does occur, viz., in a Latin 
text of 581, it means the frontier of a kingdom.^ 
From the boundary line of a country it came to 
mean the region of country lying along the border, 
as its later use in such expressions as the " marches 
of Spain,'* "the marches of Scotland." Like the 
^ords finis and terminus ^ from meaning the bound- 
aries or limits of a province, or a private estate the 

tion of the word so far as the early English evidence is con- 
cerned (Thorpe, Ancient Laws of England, I, pp. 33, 34). 
Earle, after an extensive study of Anglo-Saxon documents, 
confirms this point of view. He says, " The word mearc oc- 
curs repeatedly in the documents, but never in the sense of 
the area of occupation, still less in the political sense of the 
occupying community. What Kemble calls its restricted and 
proper sense of boundary is the only sense it bears in our 
records " (Earle, Land Charters and other Saxonic Documents, 
1888, Introduction, p. xlv.). 

^ For a long time the word continued to be used in this 
sense. A good example is cited in the Recherche, p. 330. A 
capitulary of 811 is cited, " Let them know that the boundary 
(marcam) is at the Elbe — Let them know that the Pyrenees is 
their boundary line (marcam)." — Recherches, p. 325. 



Discussio7i of tlie Earlier Evidence. 43 

word marca came to be applied to the estate enclosed 
within these limits.^ In the 8th, 9th and loth cen- 
turies the mark is the same as the villa.^ It belongs 
to a single owner or sometimes jointly to two or 
three owners. It consists of cultivated fields, 
meadows, woods. It has a servile population upon 
it. 









It was the purpose of M. Fustel de Coulanges to 
show that neither the word mark nor any synony- 
mous word is used in that sense in any of the docu- 
ments, that the words coinmunia and allmende in 
the texts have a different sense from that assigned 
to them by the theory, that all the documentary 
evidence fails to furnish proofs of the existence of 
a self-governing communal organization, and that 
the whole of the evidence proves that they did not 
exist.^ If the thing existed some trace of it ought 
to be found in early German Law. It is not found, 
M. Fustel declares, in the law of the Visigoths, 

^ Fustel cites an. example from the Diplomata (ed. Pardes.) 
II, 442, in whicR it is said that the mark {marca) Gerlaigoville, 
in Alsace contains a house, eight acres of arable land, some 
meadow and some woods, and all was the property of a woman 
named Eppha, who had received it as a dowery. — Recherches, 

P- 337. 

2 Recherches, p, 340. 

• Cf. Origin of Property in Land, Introduction, p. xix. 



;ri 



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44 The Mark in Europe and America. 

nor in the law of the Lombards, nor in that of 
the Thuringians, nor in that of the Frisians, nor 
in that of the Saxons, nor in the Salic Law.^ The 
word marca is found in the law of the Alamanni and 
in that of the Bavarians; but here it is an exact 
synonym of terminus and is used interchangeably 
with it. The Bavarian Law mentions a dispute 
between two neighbors who have a common boundary 
and calls them com-marcani, which Maurer thought 
must mean the co-markmen of which he tells us 
elsewhere,^ but a little later on in the same law we 
are told that each disputant as to the boundary line 
must make a declaration that he has inherited his 
lands from his ancestors and if there is not sufficient 
evidence in the landmarks which the trees and 
other natural objects furnish then it must be decided 
by judicial combat between the disputants.^ M. 

1 Recherches, p. 326. Origin of Property in Land, p. 11. 

2 " Die Genosse selbst hiessen consortes, Mitmarken oder 
commarchani." — Maurer, Einleitung, p. 140. 

* " Quoties de terminis fuerit orta contentio, signa quae 
antiquitus constituta sunt opertet inquirere, id est aggerem 
terrae quern propter lines fundorum antiquitus apparuerit fuisse 
congestum, lapides etiam quos propter indicium terminorum 
notis evidentibus sculptis constiterit esse defixos ... in arbo- 
ribus notas quas decorvos vocant, si illas antiquitus probant 
esse incisas." — Baiuwariorum, XII, 4. 

" Quoties de commarcanis contentio oritur, ubi evidentia 
signa non apparent in arboribus, aut in montibus nee in flumin- 



Discussion of the Earlier Evidence. 45 

F'ustel again calls attention to the fact that the 
case cited by Maurer in the Ripuarian Law not 
only does not prove communism but does prove 
private property in land. " If any one (§ 60) buys 
a small estate, etc. — If a proprietor encroaches on 
a neighboring proprietor, etc. — The boundary (ter- 
minatio) of the two estates is formed by distinct 
land-marks, etc. — If a man overstep this boundary 
(marca) he shall pay a fine.''^ In none of these 
laws, is there found any trace of community of 
property or of an organized self-governing group of 
freemen. In all there is evidence of private prop- 
erty. It is evident that men own cultivated fields, 
vineyards, pastures, woods.^ They may sell, give 
away or bequeath ^ any or all of these. Punish- 
ment is ordained for those who remove landmarks. 
"The whole body of German law is in fact, a' law in 
which private property reigns supreme."* 

ibus." — Id. XII, 8. "Si probatis nusquam inveniri dinoscitur 
. . . cui Deus dederit victoriam, ad eum designata pars perti- 
neat."— Id. XII, 8. Quoted by Coulanges. Cf. also Leges 
Alamannorum Tit. LXXXIV; Walter ed. (1824). 

^ Quoted in Origin of Property in Land, p. 1 2. 

^ " Si quis in sylva alterius materiamen furatus fuerit, etc." 
— Lex SaHca Tit VIII. iv. Walter, ed. Corp. Jur. Germ. 
Antiq. 

« On the subject of inheritance, see Lex Salica, Tit. LXII, 
I, 2, 3, 4, 5, 6. Walter ed. Vol. I. 
* Origin of Property in Land, p. 1 7. 



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46 The Mark in Europe and America. 

A very large number of the references which 
Maurer employs to prove the existence of commU' 
nal society are to the collections of charters from 
the 8th to the 14th century. They are in fact deeds 
of private property. Maurer and his followers infer 
the existence of the free village community not 
only from the use of the words marca^ commarcani^ 
consorteSy etc., but also from the occurrence of the 
words commtmia and allmende in these documents. 
There seems to be some foundation for the com- 
plaint of M. Fust el that not only are words and 
phrases seized upon to the exclusion of abundant 
evidence in the entire documents to the contrary 
of the contention, but that these words are not as- 
signed their plain meaning at that period and in the 
given connection. For example commtmia. In the 
deed^ of Amalfrid and his wife Chilberta (anno 
687), in which they make a gift to the monastery 
of St. Sithin, the instrument goes on to say that 
the domain is given "in all its integrity, compris- 
ing lands, mansi, buildings, slaves, fields, forests, 
meadows, pastures, waters and watercourses, mills, 
commtmia, etc., without any reserve." Whatever 
commtmia is, it is owned and deeded. It is hardly 

^ Diplomata, ed. Pard., No. 408. Cited in Recherches, 
p. 341. 



Discussion of tJie Earlier Evide^ice. 47 



the Teutonic mark with its organized group of 
Teutonic freemen that is thus owned and deeded. 
So allmende, which occurs in no document before 
the 1 2th century, is but another word for communia. 
In a deed of 11 50, cited by Maurer, the owners 
give to a monastery an estate and their rights to 
a "common forest which the inhabitants call all- 
mende,'' and in which they have the right of gather- 
ing wood and feeding hogs. But the deed further 
explains that this forest had belonged to the ances- 
tors of the grantors, and that these had given to 
their tenants certain rights of usage which the 
present grantors wish to confirm to them in per- 
petuity.^ Professor Kovalevsky, formerly professor 
of Jurisprudence in the University of Moscow, an 
enthusiastic discoverer of traces of the primitive 
village community, complains ^ that M. Fustel 
refused to recognize in these documents the com- 
munism which is implied in the equal enjoyment 

1 An illustration of the use of silva communi may be found 
in the Lex Ripuaria, Tit. LXXVI, *' If any one shall have 
taken from the common forest of the King or of any body 
else, etc:' Evidently a forest in which the king or other person 
granted communal privileges of some kind. 

2 " Quelq'uns, comme M. Fustel de Coulanges par exemple, 
refusent de reconnaitre k ces faits un caractere de commu- 
nisme." — Kovalevsky: Tableau des origines et de revolution 
de la famille et de la propridt^ (1890), p. i74- 






. r. ; 

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48 The Mark in Europe a7td America. 

of certain rights of pasturage and of the use of 
forests. M. Fustel surely does recognize the com- 
munal character of these usages, but it is a commu- 
nism of dependents and tenants, not of self-governed 
proprietors of an undivided and undivid^ble mark. 
Kovalevsky implies that these common tenant- 
rights ^ are not necessarily derived from a previous 
regime of individual ownership. This is of course 
true, but the point to observe is that they have been 
taken as the absolute proof of the non-existetice of 
individual otvnershipy which they certainly are not. 
M. FusteFs contention is that wherever in the earlier 
documents words implying community of rights in 
land occurs, the evidence of the documents them- 
selves is that this community is (i) either the joint 
and undivided ownership of a forest by two neigh- 
boring proprietors, or (2) a joint ownership of several 
proprietors of the same estate,^ or (3) the common 
enjoyment by a body of tenants of a portion of an 
estate either gratuitously or for a rental.^ There 

^ " Certains f aits ne d^rivant pas ndcessairement d'une pro- 
priety individuelle antdrieure." — Ibid. p. 174. 

2 Among the numerous illustrations of this, an excellent one 
is cited by Mr. Ross from the Lauresham Codex : " De ilia 
silva communis quantum jure hereditario ad me pertinere 
videtur." — Early Hist, of Land-holding among the Germans, 
p. 38. 

* Recherches, p. 354. 



|! 



Discussion of the Earlier Evidence. 49 

are abundant examples of the cession of entire , 
estates with their servile populations upon them. 
" Dono rem meam in pago illo, id est mansos tantos 
cum edificiis supra positis una cum terris, silvis, 
campis, pratis, pascuis, commiiniisy necnon et quid- 
quid ibidem comrnanentibiis vel aspicientibus, omnia 
et ex omnibus, quidquid in ipso loco mea videtur 
esse possessio vel dominatio.'* From the 12th cen- 
tury forward communities are occasionally to be 
met with, such as that of the 12th century cited 
by Kovalevsky, where the inhabitants of a villa 
owned and enjoyed a forest in which, it is declared, 
nobody has any private property but all own it in 
common.^ But it is well to observe, not only the 
lateness of the date, but that these may equally well 
be explained as originating in dependent communi- 
ties cultivators which were confessedly wide-spread 
long before that period. Furthermore, the very lan- 
guage of the document implies a regime of private 
property. It is worth while to remember that the 
whole body of documents, from the earliest period 
from which evidence has been gathered in support 
of this peculiar communal institution, contain 

1 Tableau des origines et de revolution de la f amilie, p. 1 78. 
This and similar cases cited also by Fustel in Recherches, p. 

350- 



ti 






SI 



I I 






50 The Mark in Europe and America. 

abundant and undeniable proof of the individual 
ownership of land, — a fact which certainly 
weakens the dogma that "the original basis upon 
which all Teutonic society rests "^ is com- 
munal. 

It is with evident relish that M. Fustel calls 
attention to the fact that Maurer and his disciples 
have referred so abundantly to the Traditiones, or 
collections of deeds of private property, to estab- 
lish the universal existence of communal prop- 
erty. "Ten thousand documents of gifts, wills, 
sales or exchanges," he exclaims, "which form 
an absolute proof of a system of private prop- 
erty, out of which eighteen or twenty are taken 
and misinterpreted to prove that it did not exist." 
" Maurer has not furnished us with a single proof, 
a single quotation, in support of the community 
or association of the mark that he pictures to 
himself as existing when history first begins. Go 
over the innumerable quotations at the bottom of 
his book; more than two-thirds relate to private 
property; of the rest, some hundreds are con- 
cerned with minor points unconnected with the 
subject; not a single one touches the main ques- 
tion; or if there are any which at first sight 

1 Kemble, Saxons, I, p. 53. 



Discussion of the Earlier Evidence. 5 1 

appear to do so, the slightest examination shows 
that they have been misunderstood or misinter- 
preted."^ 

Very similar were the conclusions arrived at, 

quite independently, by Mr. Denman Ross, whose 
work, based upon a thorough examination of the 
documentary evidence, deserved more attention than 
it has obtained. The scant consideratior»vhich his 
writings received may have been due, in part, to a 
certain temerity which he displayed in refusing 
allegiance to a theory which had received such un- 
questioning acceptance by historians whose names 
the world delights to honor. With such support to 
the theory, it was easier to pass by an innovator 
than to refute the force of his reasoning. Perhaps 
the confident tone in which he asserted his con- 
clusions that "the mark is the manor, first and 
last ; that the lord of the mark was the lord of the 
manor," 2 and the bold attempt, not only to destroy 
the idol of the "Golden Age" of Teutonic history, 
but to reconstruct the complex history of that period, 
are partly responsible for a certain lack of attention 
to the evidence which Mr. Ross has brought to bear 
upon the subject. 

1 Origin of Property in Land, p. 61. 

2 The Mark and the Manor (1879). 



m 



it 









•■,f 



52 The Mark in Europe and America. 

The result, then, so far as the continental evidence 
is concerned, is to establish the existence of private 
property as far back as there is any documentary 
evidence, roughly from the 5th century onward; to 
show the presence of large estates with a dependent 
population of cultivators upon them; to show that 
the estates with their dependent population were 
bought ^d sold, given away and bequeathed; to 
show that communal privileges in forest and pasture 
were granted to tenants by the proprietors ; and to 
show that these communal privileges sometimes 
hardened into rights. It would remain for the ad- 
vocates of the mark theory to show that alongside 
of these there existed, in the earlier period, groups 
exercising communal ownership and self-government ; 
that these had an independent origin; that the 
manorial estates grew out of such groups ; and that 
the mark had become the manor before there was 
any documentary evidence bearing upon the case, 
or else that the documents prove their contempo- 
rary existence. 

The earlier evidence, so far as England is con- 
cerned, is much of the same character as that of 
the continent. Attention has been called to the fact 
that the laws of Ethelbert (597-616) show the exist- 



Discussion of the Earlier Evidence. 53 

ence of private property at that date.^ Whatever 
may have been the character of the estates, the hams 
or tuns, there can be no question as to their indi- 
vidual ownership. " If a man drink at a man's haniy 
etc. If in the king's tun a man slay another, etc. 
If in an earl's tun a man slay another, etc. If a 
man into a man's tun enter, etc."^ While it has 
been noticed, the important bearing of this fact of 
the individual ownership of land, which is attested 
by the earliest Saxon documents, does not seem to 
have been sufficiently dwelt upon. From the very 
first charter given in the collections of Kemble^ 
and Earle,* that of Ethelbert, a.d. 604, '' Idoque tibi 
sancte Andrea y tuaeque ecclesiae . . . trade aliquan- 
tulum telluris mei. Hie est terminus mei doni, &c.y' 
onward, we have abundant documentary evidence 
of the ownership of estates, and of their transfer 
with all their belongings.^ It has been pointed out 

^ Seebohm's English Village Community, p. 1 74. 
2 Laws of Ethelbert See Thorpe's Laws of Ancient Eng- 
land. 

« Kemble, Codex Diplomaticus, I, i. 

* Earle, Land Charters, p. 3. 

* A good example is in the deed of Wulfhere, 674: "... dabo 
Berhferthe propinqus mens aliquam partem agri in hereditatem 
perpetuam, id est. v. manentes . . . cum campis et siluis et 
omnibus utensilibus rebus ab isto agro pertinente; aeternalite 
ac perseuerabiliter possideat abendi vel dandi cuicumque eligere 






I 



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54 The Mark in Europe and America. 

that not only was the soil transferred, but the cul- 
tivators upon it, and that these were described by 
the same terms as, in contemporary use upon the* 
continent, were applied to serfs bound to the soil.^ 
We are told by Bede that King Oswy (circ. 655) 
in his war against Panda, vowed that in case he 
should be successful he would give twelve manorial 
estates ^ for the founding of a monastery. A little 
later we are told that he fulfilled his vow and that 
the estates had ten families each, one hundred and 
twenty in all.^ The Abbess Hilda, having acquired 
a possession of ten families* at the place called 
Streanaeshalch, founded there a monastery. King 
Ethelwalch gave to the prelate Wilfrid the land of 

voluerit. Hoc agrum liberatum est cum xxx. mancusis cocti 

auri, et semper liber permaneat omnibus habentibus, etc." 

Earle, Land Charters, p. 5 ; or in the deed of Aethelbehrt given 
in Kemble's Codex Diplomaticus, I, 4, "opituli ei villam 
nomine Sturigno, alio dictam Cistelet, cum mancipiis, siluis, 
cultis vel incultis, pratis, pasquis, paludibus, fluminibus, et con- 
tiguis ei maritimis terminis, eam ex una parte cingentibus, 
omnia mobilia vel immobilia, etc., etc." 

1 Cf. Ashley's Introduction to Origin of Property, xv. Also 
discussion of tributarii by L. Hutchinson in Qr. Jr. Economics, 
VII, 205. 

2 " Duodecim possessiones praediorum ad construenda monas- 
teria donaret." — Bede, Eccles. Hist, III, xxiv. 

* " Singulae vero possessiones decem erant familiarum, id 
est, simul omnes centum viginti." — Ibid. 

^ "Comparata possessione decem familiarum." — Ibid. 



Discussion of the Earlier Evidence. 55 

eighty-seven families^ to maintain his company of 
followers who were in banishment in a place which 
was called Selsey. One might imagine that ''the 
land of eighty-seven families '* was merely the meas- 
ure of the land, the land capable of supporting that 
many families, were we not distinctly told that the 
king gave all the property there ''with the lands 
(estates) and with the men,''^ ^nd that among these 
there were two hundred and fifty slaves, male and 
female, whom the good prelate freed from bodily 

servitude. 

Caedwalla, though a heathen, had bound himself 
by a vow to give one-fourth of the lands of the Isle 
of Wight to religious purposes. The measure of 
the island is of 1200 families, and so the bishop 
had given to him the land of 300 families.^ The 
Anglo-Saxon version describes the extent of land as 
so many hides. The Anglo-Saxon Chronicle records 
that the king gave Columba (about 565) the island of 
li, wherein are five hides; and, again, that Kenwalk 
gives Cuthred 3000 hides of land. Though it might 

1 This mode of reckoning land by the number of families 

is in itself significant. 

2 " lUi rex cum praefata loci possessione, omnes, qui ibidem 
erant, facultates cum agris et hominibus donavit." — Bede, iv, 
ch. 13, § 291. 

» Ibid, iv, 16. 






W ! 



I 



56 T^ Mark m Europe and America. 

be maintained that these do not necessarily mean 
the holdings of manorial estates, together with the 
services of the holders, and that they merely indi- 
cate a measure of land, yet they indicate the great 
prevalence of private landed property, and that in 
the form of large estates. 

Kemble himself admits 1 that lands were conveyed 
by charter from the time of the introduction of Chris- 
tianity (597), and is not disposed to deny that they 
were conveyed before that time by symbols in the 
presence of witnesses. It would be incredible that 
the owning and disposing of estates with their cul- 
tivators, should suddenly spring into existence with 
the coming of Augustine, though he may have in- 
troduced the written charter. It is significant that 
with the first documentary proof, private ownership 
in land seems to be a fixed institution. This, taken 
in connection with the earliest continental evidence 
bearing upon the case, renders it highly probable 
that the Saxons brought a knowledge of private 
landed property and serfdom from the continent. ■ 
Beneath the class of dependent cultivators, who 
were bound to the soil, and whom we ordinarily 
speak of as serfs, it is evident that there was a slave 
class who were mere chattels, bought and sold at the 

^ Codex Diplomaticus, Introduction. 



Discussion of the Earlier Evidence. 57 



will of the master. There are abundant proofs of 
this. Bede furnishes an example, in addition to the 
one already cited, in the passage where Bishop Aidan 
is commended for using the riches bestowed on him 
in ransoming such as had been wrongfully sold as 

« 

slaves.^ 

It was under the stress of such evidences of prop- 
erty and social inequality that Professor Allen, who 
accepted the free village community theory, but 
who could not find it in Caesar or Tacitus, was 
constrained to admit that it had been proved that 
it did not exist in the 5th century .2 "The 
free village community, therefore," says he, "is 
a natural and probable connecting link between 
what we know to have existed in the ist and what 
we know to have existed in the 5th centuries/*^ It 
is well to notice that this pushes the free village 
community back into the narrow confines of the 
three or four centuries succeeding the first, into a 
period where there is scarcely a ray of historical 

1 " Redemptionem eorum qui injuste fuerat venditi." — Bede, 

••• 
111, 5. 

The examples are abundant. " If a man buy a maiden with 

cattle, let the bargain stand, if it be without guile." — Laws of 

Ethelbert, ^T, See Thorpe's Ancient Laws, p. 9. 

2 Monographs, p. 236. 
• Ibid. p. 238. 



!l 



m 



I ' 



58 TAe Mark m Europe and America. 

light. Of that period a word or two may be said 
hereafter. It must be granted, however, that while 
the earliest documents reveal the existence of the 
ownership of land and of serfdom, they do not show 
the non-existence of some such free communities; 
but they do make it incumbent upon those Vho 
assert the existence of such bodies to make good 
their assertions with proofs. There is other evi- 
dence which must not be neglected. The inequali- 
ties of wealth and rank, the influence of noble blood 
and military prowess, and the substructure of serf- 
dom, which are revealed to us by Tacitus, have been 
adverted to. When next the light of history falls 
upon Teutonic society we again see it permeated 
with the essentials of an aristocratic state.^ We see 
again the king, the noble, the serf, the slave. We 
see wealth and power accumulated in the hands of a 
single individual. The inference is not unfair that 
a similar state of society prevailed during the inter- 
vening period, even if it were possible for an 

^ Bede is full of evidence as to the nobility, and the concen- 
tration of wealth and power, e. g., Book III., 24, 27, 30. It is 
remarkable that there is not similarly clear evidence in regard 
to the alleged self-governed village communities. Even the 
evidence in regard to the inequalities which is afforded by the 
laws in regard to wergild is proof of an aristocratic and not of 
a democratic structure of society. 



Discussion of the Earlier Evidence. 59 

agrarian system to spring up, flourish and decay in 
so brief a time. Indeed, it is hardly possible, even 
if it were proved that there were instances of a free 
communal mark at the beginning of English history, 
to believe that it was the characteristic form of the 
governmental or agrarian system. Much more in 
accordance with the facts appears to be the view of 
Palgrave, a writer on constitutional history who 
thouerh he wrote before the doctrine of Kemble and 

o 

Maurer had made its appearance, is not so anti- 
quated as not to be studied with profit. He says 
that from the dawn of Anglo-Saxon history "Aris- 
tocracy was the prevailing principle of the Anglo- 
Saxon government; and, though mere nobility, that 
is to say, nobility unaccompanied by landed prop- 
erty, did not confer authority, still the main privi- 
leges of the Patrician were the results of blood and 
parentage.'*^ Again the same author tells us^ 
that "according to the policy which appears to have 
prevailed amongst all the Teutonic nations, the 
Anglo-Saxons were divided into Castes whose rank 
was the measure of their estimation before the law, 
and from whose various privileges the entire system 
of the laws and constitution was deduced,'* an asser- 

1 Palgrave, Eng. Commonwealth, I, 2. 

2 Ibid. I, 9. 



1-1 \ 

m 



"^ 



m 



w 

60 T/ie Mark {71 Europe mid America. 

tion which Anglo-Saxon law abundantly verifies.^ 
And it is worth while to remark in this connection 
upon the curious fact that those earlier explorers 
in the regions of English constitutional history, 
Thorpe, Palgrave, and Hallam,^ altogether failed 
to discover an institution at once so unique and 
so much in sympathy with the tendency of modern 
thought .3 

^Earle's Land Charters (1888), introduction, xlvi: "The 
lord of the manor is an essential member of the original settle- 
ment." Pollock, The Land Laws, p. 11: " Even the personal 
freedom of the old days was the right of a privileged class." 

2 For Hallam's influence on historical teaching see Ashley, 
Economic Review (April, 1 893). 

« Kemble accounts for this failure on the ground that his 
predecessors had made of themselves " degenerate Greeks and 
enervated Romans," and had rendered themselves unable to 
understand the peculiarities of Saxon institutions. — Cod. Dip. 
Intro, iii. 



I ; 



hi 



; li 



' 



■■ 



IV. 



DISCUSSION OF THE LATER EVIDENCE. 

LEAVING then for the present the earlier evi- 
dence, for after all it was never upon contem- 
porary evidence that the theory was made chiefly to 
j-est, — let us turn to the later evidence and to the 
second line along which modern discussion has pro- 
ceeded. The stronghold both for the establishment 
and the support of the mark theory has been the 
soil itself and the facts in connection with it which 
are patent to the eye of every observer.^ These 
facts and the documents of the past five or six hun- 
dred years are taken as the basis upon which an in- 
ference is to be made in regard to the state of facts 
some thousand years earlier. The method is, '' Here 
are some matters of common observation and some 
facts of recent history. Whether the result of 

1 And how slender a support this is may be inferred from 
the language of Freeman : " It is as much as we can do to 
trace out some faint footsteps of the ancient system, such as 
we can see in common lands, in some form of communal in- 
stitutions, in petty and half obsolete local tribunals." — Nor- 
man Conquest, I, p. 86. 



Hi 



■ r J 



! 



62 Tlie Mark in Europe and America. 

growth or decay, we find their origin in the past. 
What was that origin ? " The question is perfectly 
fair, and the method is perfectly legitimate, especially 
if the phenomena are observable over a long period ; 
for then it is possible to notice the trend of events. 
Where the change is so slow, as it is in agrarian 
systems, the conditions are especially favorable. 
And yet the dangers are obvious, and have again and 
again been pointed out. Here is a certain effect ; 
what was its cause a thousand years earlier ? Like 
every resultant it has a large number of possible 
components. It is particularly desirable that in 
looking upon the phenomena as remains, there should 
not have been formed in the mind a picture of the 
thing of which these are the remains. But that is 
just the state of mind that a theory, when once 
^accredited, is likely to bring about. It is also de- 
sirable that the results be constantly compared with 
the known facts of the period which it is proposed to 
reconstruct. The contrivers of the mark theory 
said, " Here is a curious system of intermixed own- 
ership of land. Here are certain tracts of land of 
which many people have a common enjoyment. 
Here are certain rights and duties of tenants in con- 
nection with the manorial courts. These things 
might have had their origin in a free and self-gov- 



Discussion of the Later Evidence. 63 
emed communal group. They did have such an 



ongm. 



It was at the time when this conclusion was at 
the high tide of its popularity that Mr. Seebohm 
gave to the world the results of his studies.^ Even 
in this our day, when the seeker after scientific 
accuracy is supposed to be coldly indifferent to 
current opinion, or any other opinion, it required 
considerable courage on the part of one, even 
of Mr. Seebohm' s reputation, to present studies 
which seemed at variance with the popular cur- 
rent. 

Beginning with the remains of the open-field sys- 
tem as visible in the soil of England to-day, and as 
discovered in a map and court records of an Eng- 
lish township of the present century, he gathers up 
enough threads to enable his reader to understand 
the land divisions, the terminology, and the mode 
of cultivation of the manorial system. There 
had never been so clear and complete a state- 
ment of the system, and to American readers, 
especially, Mr. Seebohm' s description was very 
helpful. 

> Seebohm, The English Village Community, London, 1883. 



lil 



II 

ttl 



!l 



ir%\ 
W 



i 



VA 



I I! 



> I 



|l| 



|l|!W 



64 Tlie Mark in Europe and America. 

Around the English village,^ which was com- 
monly under a manorial lordship, lay two or three, 
" common," " commonable " or " open fields." These 
fields constituted the arable lands of the village 
and were made up of divisions, sometimes called 
"shots", or "furlongs," which in turn were made 
up of acre strips, separated from each other by 
turf balks. Originally the holding of any one indi- 
vidual was made up of scattered acre or half acre 
strips throughout the two or three fields of the 
manor. It was the object of the Enclosure Acts » 
to change this awkward system. The four thou- 
sand Enclosure Acts, between 1760 and 1844, show 
that this was practically the universal form of 
agricultural operations at an earlier period. By a 
chain of evidence the same system is traced back to 
the time when the feudal system was at its height, 
and the open field cultivation and the manorial 
regime are shown to be intimately connected, if 
not one and the same thing. Perhaps all would 
readily admit that, during the feudal period, the 
manorial system Ayas practically the universal method 
of cultivation throughput England. It was, as we 
Americans would say, the method by which England 
was "farmed." Through the changes in tenancy 



1 Eng. Village Com., pp. 7, 8. 



« Jbjd. p, 14. 



Discussion of the Later Evidence. 65 



brought about by the Black Death in 1349-50, we 
are enabled to get a typical illustration of the system 
in the Winslow Manor Rolls.* The land is seen to 
consist of lord's demesne and land in villeinage. 
The villain's holding consists of acre and half acre 
strips scattered throughout the three fields.^ The 
bundle of strips so held (normally about thirty 
acres) is a virgate or yardland. The great body 
of tenants is made up of these holders of virgates, 
half virgates, and acres, and are in serfdom. Going 
back to the Hundred Rolls (Edward I, 1279)^ we 
learn of the classes of tenants, the libere tenentes, 
the villani, or virgate holders and half virgate hold- 
ers, and the cottier tenants, and the services and 
payments of each.* The chief services rendered to 
the lord of the manor were, ist, week-work, con- 
sisting of two or three days a week on the demesne 
throughout the year; 2d, the precariae or boon-days, 
extra work at busy seasons, e.g. ploughing times 
and harvest ; 3d, payments in money and in kind. 
In addition to this there were yet more servile inci- 
dents, such as, the payment of a fine for the mar- 
riage of a daughter, or the sale of an ox, and the 
obligation not to leave the lord's land, ett. The 



\- I 



1 Eng. Village Com., p. 22. 

2 Ibid. p. 28. 



* Ibid. p. 34. 

* Ibid. p. 41. 






66 Th^ Mark in Europe and America. 

whole body of tenants was under the direction of 
manorial officers. 

The entire chain of evidence wrought out with 
great patience and detail carries us back to Domes- 
day, and shows us essentially the same thing in 
operation throughout England — manorial lords, 
freemen,! villains, cottagers, and slaves, all forming 
parts of the same system. It is this vivid picture 
of all England under one vast system of villain 
tenure, with its oppressive servile labors, payments 
and exactions, which forms Mr. Seebohm's most 
striking contribution. It is this which renders all 
dispute about words, as whether the villain was a 
serf or a freeman, of little value. If a man is com- 
pelled to render to another a fixed service of consid- 
erably over a hundred days in the year ; if in addi- 
tion to this he must work twenty or thirty days 
more at the will of the other, in all, perhaps, half 
the working days ; if in addition to this he must 
make payments of produce or money to that other; 
if in addition to this he is bound to the soil; if he 
cannot marry his daughter without this superior's 
consent, nor sell his ox, nor grind his grain else- 
where than at the mill of this superior; if he have 

^ The terms liberi, libere tenentes and freemen are used 
interchangeably. 



Discussion of the Later Evidence. 67 



no status, or an uncertain one, in any except the 
lord's court; if the lands he cultivates go into his 
superior's hands at his death, and when regranted, 
must be regranted without division and on the pay- 
ment of a fine; then it little matters whether he is 
called a serf or a freeman, so long as you know the 
state of the facts. And that this can be taken as 
the typical condition of the villain of post-Domes- 
day times can hardly be doubted. 

The Domesday book itself (1086) presents to us 
the same picture. There is the same division of 
the land into lord's demesne and land in villainage, 
the same kinds of holdings, the same classes of 
tenants. According to Ellis's estimate as to popu- 
lation, 70 per cent, were made up of villani, and 
the still more dependent class of bordarii and cotarii. 
The former have usually single virgates and half vir- 
gates; the latter a few acres, or merely a cottage. 
They hold in villeinage one-half the cultivated lands 
of England.! One-eighth of the population, holding 
perhaps one-fifth of the land, apparently under the 
same tenure as the villain, are classed as libere 
tenentes and sochmanni. The lords of the manor 
and the servi or slaves, each formed less than one- 

^ Eng. Village Com., p. 90. 



Ill 
I 



r 



68 The Mark in Europe and America. 

tenth of the population.^ So, taking the England 
of Domesday, — and Domesday was said to include 
every yard of land in it,2_we have at that time a 
population and an agricultural system in which the 
great mass of the people is in social and economic 
dependence and subject to exactions of a servile 
character. But the criticism has been made that 
too much stress has been placed upon the ter7ns 
used in Domesday. It may be said, with some 
show of reason, that Domesday is first and foremost 
an enrollment of lands for purposes of taxation ; that 
it is not a description of classes ; that the mention 

1 Ellis gives the following estimate : 

5 Liberi Homines 10007 

( Sochmanni ^r 072 

Villani ,og'^o7 

5^^^^^^" 82,119 

^^^t^"i 5,054 

Servi 2^ ,^6 

Burgenses ^^^^g 

All others (most of whom might fall in the 

above classes) 21 360 

283,242 
See Ellis's Introduction to Domesday Book, Vol. II, p. 511, 
et seq. 

^ " Tarn diligenter lustrari terram permisit, ut ne unica esset 
hyda, aut virgata terrae, ne quidem (quod dictu turpe, verum is 
factu turpe non existimavit), bos, aut vacca, aut porcus praeter 
mittebatur, quod non is retulerat in censum." — The Anglo- 
Saxon Chronicle, as quoted in Ellis's Introd. to Domesday 
Book, Vol. I, p. 15. 



Discussion of the Later Evidence. 69 

of the latter is purely incidental to the ascertaining 
of the former, much less is it a description of the 
services of these classes ; that the barones regis y who 
made the survey, knew little and cared less about 
the status of the tenants, and hence, that any infer- 
ence as to their freedom or serfdom, must be taken 
with large allowance. Yet after all, this great his- 
torical monument, founded upon the sworn testi- 
mony of the cultivators in each neighborhood, must 
present the rough outline of the agricultural system 
as it existed, and it is the broad facts and not the 
isolated cases that we are seeking. 

Domesday is practically a description of the con- 
ditions under Edward the Confessor and at the close 
of the Saxon rule.^ The same manors were crown 
manors before and after the conquest ; the monas- 
teries for the most part continued to hold their 
manors, and the Norman knights came into pos- 
session of those of the Saxon thanes.^ Whatever 



I 



1 Eng. Village Com., pp. 82, 83. 

2 It would be a mistake to think of a manor only as a great 
estate. Many of them were very small. E.g. the Manor Fallei 
given in the Domesday for Devonshire. One Drogo holds it 
of the Bishop. Drogo has half a ferling and one plough (land) 
in demesne. There Drogo has one villain, two borders, and 
one serf, three head of cattle, five swine, six sheep, and ten 
goats, four acres of wood and six acres of meadow. 



'■» 



f ;■ 

! 



Ilii 



!t! 



i 



1^ 



70 The Mark in Europe and America. 

may have been the system at the beginning of the 
Saxon rule, at its end, a system in all respects 
identical with the manorial held universal sway.^ 
There was the same open-field system, the same 
division into lord's land and land in villainage 
(thane's ifila^id and geneat land), the same hold- 
ings of bundles of intermixed strips, the same 
classes of tenants, the same kinds of labor dues, 
payments, and servile exactions under the Saxons 
before the Conquest, as under the Normans after 
the Conquest. The evidence of the same system in 
detail is carried back to the loth century by the 
Rectitudines Singularum Personarum.^ Here we 
have the conditions precisely like those of the nth 
century, as to the cultivation of the estates by tenants 
in economic and social servitude, and this document 
is supported by other contemporary evidence. 

Thus far, it is generally admitted, Mr. Seebohm 
has made out his case, though it is not so generally 
admitted that the conditions described were by any 
means so universal as he would contend. But this 
was the settled condition of things a century before 
the Conquest. It was not a sudden invention. No 

1 Eng. Village Com. p. 84. 

* See Thorpe's Ancient Laws of England, p. 185. 



j^a 



Discussion of the Later Evidence. 71 



agricultural system can be. How far it ran back, 
whether the Saxons had been led to revolutionize 
their system since their occupation of the country, is 
of course hard to determine. But the scanty earlier 
evidence at our disposal furnishes hints of the same 
system, and certainly does not furnish proof of any 
other. The evidence of the charters as to owner- 
ship of land runs back as far as the Saxon docu- 
ments go, and the evidences of inequalities of wealth, 
rank and power, have already been cited. The Laws 
of Ine (a.d. 688) bear testimony to yard-lands (vir- 
gates), labor dues, and payments. It further gives a 
hint, not only of the condition of the slaves, but also 
of some who were called " freemen.*' ^ ** If a theow 
work on Sunday by his lord's command he shall be 
free.'* " If a theow work on Sunday without his 
lord's knowledge let him suffer in his hide." ** If a 
freeman work on Sunday without his lord's com- 
mand let him forfeit his freedom." ^ This is within 
two centuries of the Saxon invasion. Going back 
to the laws of Ethelbert in the 6th century, we 

^ Prof. Ashley compares the position of the dependent 
freemen to that of the Roman colonus, Intro, to Origin of 
Property in Land, p. XL. 

2 Thorpe, Ancient Laws of England, I, p. 105. 

Note the similarity of the terms used in speaking of the 
theow and i!^^ freeman. 









h\ 



, 



72 T/ie Mark in Europe and America. 

undoubtedly find there a hint of the manor, and 
certainly evidence of private estates.^ Now when 
this line of evidence is not left loose but is joined 
with that from the earliest period downward with 
which it harmonizes; when it is viewed in the 
broad light of the known facts in regard to the 
social structure, it forms a chain which is not easily 
broken. It has been said that there is a gap here, 
that the evidence is weak. It is not weak on its 
positive side. It establishes beyond question the 
existence of individual landed property from the 
4th or 5 th century to the present, with a strong 
probability, to say the least, of its existence in 
the Germany of Tacitus.^ It establishes beyond 
question from Tacitus forward an aristocratic social 
organization with its gradations of rank, wealth and 
power, a condition of things which was intensified 
by the warlike character of the age. It establishes 
beyond question the existence of a servile popula- 

} Eng. Village Com. p. 173. 

2 It has been well remarked by Professor Birkbeck, "We 
find serfdom existing in England soon after the Norman Con- 
quest under the name of villeinage ; we find serfs in Saxon 
times under the designation of geneats and geburs ; we find 
serfdom forming part of the German agricultural system in 
the days of Tacitus. Is there not a strong probability that 

the first mentioned custom was derived from the last.^" 

Distribution of Land in England, ch. III. 



\ 



Discussion of the Later Evidence. 73 

tion from the time of Tacitus, until through economic 
and social progress it finally disappeared. The 
evidence is weak in not being able to prove a nega- 
tive, that is, that free communal village groups 
did not also exist. But it is well to note the entire 
absence of any proof of communal ownership in 
Tacitus, and a similar absence of anything which 
, may not be explained equally well as the communal 
enjoyment of privileges under a lord. It is not 
sufficient to establish the existence of a hitherto 
unsuspected institution to give such an interpreta- 
tion to terms, of which we have not as yet adequate 
knowledge, as shall account for the institution of 
the theory. We talk about serfdom and freedom 
as though these very terms were used during the 
Saxon period in the modern sense, and that even 
though we are not yet agreed as to what the terms 
now mean. We say of a 6th century man or a 
nth century man that he was free. Free from 
what? Free to do what*.'^ The freedom which was 
** the privilege of a class'' was very different from 
the 19th century conception of freedom. One 
understands by serf a slave like the Roman slave, 
or the slave on one of our ante belhim plantations; 
used in such a sense the serf population of England 
was small. Another understands by serf a depen- 



fl 



Il» 



74 The Mark in Europe and Arnerica. 

dent standing in a position between that of an 
American slave and that of the man who can go 
where he will, when he will, enter freely into con- 
tracts and be free from servile exactions. The 
dependence of a very large portion of the population 
is indisputable. 



But if the considerations to which the study of • 
the later evidence has given rise were left here, its 
most important element would be omitted. For we 
have already called attention to the fact that the 
method of following back to the unknown from the 
known is chiefly valuable in enabling us to discover 
the direction of historical development. The broad 
facts are what we chiefly want. It would be per- 
fectly legitimate to ask, what upon the whole has 
been the tendency of the development in the labor- 
ing population of England from the Rectittcdines^ 
Singtdarum Personariim to the Reform Laws. Not 
the isolated case, but the general condition is what 
we want. Now, it is perfectly conceivable that there 
may have been a back-and-forward, pendulum-like 
movement during brief periods, so far as political 
conditions are concerned, but such could not be the 
case in respect to the agrarian system, except for 
long periods. The question as to the direction of 



Discussion of the Later Evidence. 75 

economic and political development for the past 
five or six centuries may be dismissed, for all will 
instantly admit that there has been a very slow but 
very steady progress toward greater freedom. But 
how was it from Domesday onward, or, if you please, 
from the Rectitudines ? Now, the series of documents 
from Domesday downward show a very rapid increase 
in the number of libere tenentes^ and sochrnanniy 
and the decrease and disappearance of the servi. 

Professor W. J. Ashley, who takes substantially 
the view that the evolution of Teutonic society 
has been in the main from a condition of serfdom 
toward greater freedom, has made an important 
contribution to the whole subject of the direction 
of this evolution from the 1 1 th century forward by 
the emphasis which he has placed upon the increas- 
ing numbers of the higher classes of tenants, the 
growing importance of 'commutation,' the increas- 
ing disposition of manorial lords to let certain privi- 
leges, or their entire estates at an annual 'firm' 
or rental to some individual, and occasionally to 
the entire manorial community.^ In the chapter 

^ An excellent illustration is given in Ashley's Economic 
History, p. 23. 

2 Examples of the latter in the Worcestershire Register, 
47 a vid 54 b, have been cited by Nasse in Land Communities 
and Ashley in Economic History. 



11 



\„ 



76 The Mark in Europe and America. 

on The Manor and Village Community ^ in the first 
volume of his Economic History, and in the Intro- 
duction to The Origin of Property in Landy and 
elsewhere this tendency and its effects have been 
pointed out. 

From labor services at the lord's will there was in 
the twelfth century rapid progress to labor services 
of fixed amount, and from this a still more rapid 
progress to the commutation of these for fixed 
money rents.^ Professor Allen indeed was not 
ready to grant that from the loth to the ijrth 
century serfdom grew from harsher to less harsh.^ 
In fact he thinks that the opposite was the case. 
He would put a different interpretation upon the 
requirement of labor services "at the lord's will," 
than that the obligation was one of unlimited 
liability to labor. He supposes that the time and 
manner of these services were fixed largely by 
custom, that they were merely nominal, and that 
in fact they were much less severe than the fixed 
week-work of two or three days a week which pre- 
vailed in the nth and I2th centuries. But it will 
be remembered that the Rectiticdines mention labor 

^ " He (the villain) obtained by custom fixity of rent and 

fixity of tenure." — Birkbeck, Distribution of Land in Eng- 
land, ch. ii. • 

2 Monographs, p. 244. 



: Discussion of the Later ^ Evidence. 77 

for two or three days every week. The supposi- 
tion that the requirement of labor-service at the 
lord's will was merely* nominal, and was with ''the 
understanding that no unreasonable demands should 
be imposed on them" is gratuitous. The example 
that Mr. Allen cites ^ from the Rotuli Hundredorum 
of tenants complaining that their services had been 
increased is an instance of boon-days, and not of 
week-work. No doubt there were such cases, and 
the one cited merely shows that in the time of 
Edward I. the tenants had gotten to the point where 
they would resist an unusual demand for extra ser- 
vices. But it is not so much that the evidence shows 
a decreasing number of days of service in the course 
of the year, nor even the more important matter that 
there was a precisely fixed amount of service upon 
which they could depend; but it is the rapid rise of 
tenants to a higher class, as indicated by the decrease 
of the lower and the increase of the higher classes, 
and the rapid commutation of services for money 
dues, that proves the growing emancipation from 
economical servitude.^ The longer the period con- 

^ Monographs, p. 245. 

2 Vinogradoff thinks that the influence of the Norman Con- 
quest, in bringing about certainty of condition as to tenure 
and status of the villains in ancient demesne, was of the highest 
importance in maintaining their privileges and promoting their 
liberties. — Villainage in England, pp. 1 24, 1 26. 



78 The Mark m Europe and America. 

sidered, the more apparent is this trend. It has been 
pointed out that during the I2th and 13th centuries 
may be obser\xd the process by which the communal 
organizations, not under a manorial lordship, of which 
there seem to be some examples, came into exist- 
ence.^ The growing tendency to commute services 
for money payments was accompanied by another by 
which the entire income of the manor, its services, 
fines, court dues, meadows, manorial mills, etc., etc., 
were let to an individual at an annual ''firm" or 
rental, and the "firmar'' was sometimes the entire 
manorial village, the villata. The communal organ- 
ization, which was essential to the manorial system, 
made such action of the village as a unity possible. 
Mere communal action is as good proof of a servile 
as of a free community. If there are some cases in 
which a serf community, through operations which 
were well known, came to control its own affairs, 
does it not create a presumption that others where 
the process is not so obvious may have become so 
by the same means } The tendency of temporary 
agreements and privileges, which were no doubt at 

^Ashley, Economic History, pp. 37, 64. There are in- 
deed cases in Domesday where the tenants hold the manor 
apparently as a body. But it is always under a lord. " Ipse 
episcopus tenet Melbroc. . . . Villi tenuerunt et tenent 
Non est ibi aula." — I. 41 b. See also Alvarestoch. 



Discussion of tJu Later Evidence. 79 

first advantageous to both lord and tenants, to 
harden into custom, and of custom to harden into 
right and law, strongly contributed to this growth 
toward greater economic and social freedom. 

It has been urged that the loss of ownership and 
its exchange for mere rights of use of woods and 
pasture which tenants enjoyed in the Middle Ages, 
were due solely to the encroachments of the lords. 
But these privileges must have existed and hardened 
into rights on estates where there were dependent 
cultivators, and that there were such estates is indis- 
putable. The suggestion of what was virtually a 
great conspiracy over a considerable period of time, 
viz., " that the lords, and lawyers acting in the inter- 
ests of the lords, got the people to believe that the 
lord's will was the origin of those ancient customary 
rights which were before absolute,"^ can hardly be 
saved from being characterized as an utterly artificial 
interpretation of historical development even by the 
eminence of the names that have given it counte- 
nance. That a body of lawyers, at any period in the 
world's history, deliberately set to work to enslave a 
great people, and succeeded in *' getting them to 
believe" that they had always been in that slavery, 
is hard to believe. 

1 Pollock, The Land Laws, p. 48. 



!i 



. I: 



80 The Mark in Europe and America. 

The equality in the size of the strips of land, and 
in the bundles of strips forming a single holding, 
and in the condition of the tenants, has been re- 
garded as of fundamental importance in the mark 
theory, since it was held to be proof of the eqical- 
ity of the freemen of which the village community 
was composed. Mr. Seebohm maintains that this 
equality is an evidence of serfdom, not of freedom. 
Whether he is right in this or not, it is worth while 
to notice that in the periods where our evidence is 
abundant, the tenants amongst whom the "equality 
of holdings and condition is greatest are those 
who are subject to the most servile exactions. A 
typical illustration of this may be seen in the case 
of the tenants of Castle Combe.^ The history of 
this manor is full of instruction in more ways than 
one. In the manorial records for 1340, there are 
ten tenants classed under the head of "liberi,*' no 
two of whom hold on the same terms. They range 
from William le Knevylle, who holds two and a half 
virgates and one tenement, and pays one pound of 
cumin a year, and is subject to heriot, to Henry le 
Moylner, who holds a water mill and three acres, 
and is subject to money rent, labor dues which may 

^ G. Poullet Scrope, History of the Manor and Ancient 
Barony of Castle Combe. 



Discussion of the Later Evidence. 81 

be commuted for money, and payments in kind. It 
is worth remarking that while in 1 340 there are ten 
classed as liberi, there were none in Domesday. 
Among the thirty customary tenants there is greater 
equality, heavier services and exactions. Of the 
twelve who are classed as virgatae, the holdings, 
services, payments, and servile obligations are pre- 
cisely the same. So, also, are the holdings, ser- 
vices and exactions of the eleven dimidiae virgatae. 
There are eight Monday -men and twelve cotarii who 
occupy tenements, and in some cases hold a few 
acres of land. It is well to notice that of the 
thirteen se}vi recorded in Domesday all have dis- 
appeared as such. Under the name of ''nativV 
. they appear among the other classes. There is 
good reason for believing that it is a mistake to 
suppose that all these "servi'' or "nativi'' became 
Monday-men or cotarii, and that there was a sort 
of sliding scale from class to class. Undoubtedly 
in many cases the ^'nativi'' became holders of vir- 
gates and half virgates, perhaps rising above the 
cotarii. A good illustration, both of this and of the 
gradual rise from a servile condition to a higher 
class, may be seen in the court rolls of Castle 
Combe, under date of 1367,^ in which case John 

1 History of Castle Combe, p. 162. 



^ 



I V 







Iil 



82 Tlie Mark m Europe and America. 

Pleystede, ''a native of the lord, was admitted to 
hold two yards of land 'in bondage/ thus becom- 
ing a customary tenant. Let us observe the direc- 
tion of the development in this manor. In Domes- 
day, no freemen, twelve customary tenants, five 
cotarii and thirteen slaves. In 1340, ten liberi, 
thirty customary tenants, twenty Monday-men and 
cotarii, and no slaves. The labor dues are esti- 
mated at a money value and may no doubt be com- 
muted. The greater the equality among the mem- 
bers of a class, the more servile the exactions. The 
examples, however, of both of these facts are numer- 
ous.^ And the farther back we go the larger the 
proportion of the population that are subject to 
equality of holding, services and exactions. 

Professor Allen, though he finally admitted that 
a servile community is an original part of Saxon his- 
tory on English soil,^ nevertheless believing " that 
the political institutions of the Germans were essen- 
tially democratic,'' 3 insisted upon the importance of 
the free element in Saxon life and in the feudal 
manor. Professor Earle,* likewise, is disposed to 

1 Cf. Mr. Seebohm's examples from the Cartularies of 
Gloucester and Westminster. — Eng. Village Com. p. 58. 

2 Primitive Communities, see Science, Vol. Ill, p. 786. 

* Monographs, p. 216. 

* Earle, Land Charter and other Saxonic Documents (1888), 
Introduction. 



Discussion of the Later Evidence. 83 

magnify the free element in earlier Anglo-Saxon 
society. He rejects, however, the "idyllic sketch 
of the government of the coerls,'' ^ which, as Elton 
puts it, was "too eagerly adopted by Kemble.'' ^ 
"At the first moment of historical light,'' says 
Earle, "we find manorial rights everywhere.'' ^ He 
would represent to himself, then, at the beginning 
of English history, the manor with its servile popu- 
lation, and along side of it a free village with a 
somewhat communistic agrarian system. " The con- 
querors found a system of agriculture worked by 
families of slaves in Roman villas ; they kept what 
they found, only putting an English lord into the 
place of a Romano-British dominicus, and so with- 
out further change they founded the 'domain' 
or 'viir of the English manor." ^ He suggests 
further that a village community existed along side 
of the manor, and that the lord of the manor exer- 
cised a sort of presidential authority over this agri- 
' cultural group ;^ and he thinks that the court baron 
and the customary court are evidence of this. If 
the recent suggestions of Mr. Maitland and Professor 

1 Land Charters, Introd., p. xv. 

2 English Historical Review, 1886, p. 437. 
8 Land Charters, Introd., p. xlvi. 

* Ibid., Introd., p. Ix. 
5 Ibid., Introd., p. Ixii. 



84 The Mark in Europe and America. 

Vinogradoff, in regard to the court baron, to which 
we will presently refer, are to be accepted, it would 
^ weaken the force of Professor Earle's supposition. 
In so complex a study as that of the growth of a 
constitution some elements are apt to be overlooked. 
It is fortunate on this account that Earle has insisted 
on the importance of the military influence in the 
Saxon constitution, to which others ^ have given an 
important, though hardly so prominent a place. 
" Their (the Saxons') banded forces were divided by 
hundreds, and by hundreds they spread over the 
face of the land, and . . . shaped the first draft of 
the political map, such as in its most elementary 
ground-work it continues to this day. At this 
moment the hundreds on our map represent the first 
permanent encampments of the invading host. 
The military leader is the ancestor of the lord of the 
manor." 2 The military character of the settlement 
and the military character of their life in succeeding 
generations should no doubt be kept in mind. As 
one studies the agrarian system, as presented by 
Mr. Seebohm, he is apt, unconsciously, to picture an 
era of unruffled peace, such as the England of the 

1 E.g. Green, The Making of England, p. 169, says, "The 
land occupied by the hundred warriors who formed the unit of 
military organization became, perhaps, the local hundred." 

2 Land Charters, Iv. 



Discussion of the Later Evidence. 85 

middle ages did not present. Much as his work has 
done to correct the imperfect notions of mediaeval 
English life, which one is apt to get from poets and 
romancers, yet it is not to be forgotten that per- 
petual warfare must have exercised a powerful influ- 
ence on the character of the social life and the insti- 
tutions of the Saxons. It is worth remembering 
that the tendency of military organization is strongly 
toward a system of authority and subjection. Self- 
preservation in a rude society requires military power 
and this demands the elevation of some and the 
submission of others. And it has been very well 
observed that, in early Teutonic society, it was not 
an election by the whole body of citizens which 
elevated a man to the position of chief, but the 
getting about him of a body of personal followers 
who devoted themselves voluntarily to the service 
of the chief.i The organization growing out of 
this military element leaves little room for a demo- 
cratic social structure. 

The distinction between the manorial system and 
the feudal system, which Earle makes, is worthy 
of careful attention. " The manor is far older than 
the feudal system, and has outlived it,"^ The 

1 Ross, Primitive Democracy in the Alps, p. 4. 
* Earle, Land Charters, Iviii. 



86 The Mark in Europe and America. 






distinction would seem to be just. The manorial is 
essentially an agricultural system, while the feudal 
is esseutially a military and governmental system, 
based upon land holding. ^ The system of the culti- 
vation of the soil by a group of dependent cultiva- 
tors,2 which Tacitus has described is so like that 
which we find as the basis of English agriculture 
long after, that it would seem fair to infer that it 
had had an uninterrupted existence and develop- 
ment.3 And yet, while it is well to keep in mind 
these two aspects of the social structure during 
the middle age, it must not be forgotten that for 
a time, at least, they form an undivided whole. 



As the importance of the military influence in the 
formation of the Saxon constitution is not to be 
overlooked, so the legal evidence is a source from 
which much knowledge is to be expected. The diffi- 
culties of the interpretation of this kind of evidence 
are very great, not the least of which arises from the 

1 Cf. Freeman, Norman Conquest, i, p. 92. 

^ Germania, § 25. 

»Prof. Birkbeck remarks in this connection: "I am not 
aware of any reason for supposing that the condition of the 
peasant class, the actual tillers of the soil, was affected in any 
sensible degree by the introduction of feudalism." Distribu- 
tion of Land in England, ch. ix. 



Discussion of the Later Evidence. 87 

<* legal fictions,'* the character of which has been 
so admirably explained by Sir Henry Maine.^' The 
logical artificiality, the uniformity of conditions pre- 
supposed, the sharp lines of legal definition, render 
it difficult at any time to understand the complex 
society over which this legal system is in operation. 
When the legal writers of any period are no more 
in accord in their interpretation of law, than, say 
Glanville and Bracton, a still further complication 
arises. All these difficulties are greatly increased 
when the attempt is made to interpret conditions of 
the remote past, which appear to be revealed by 
present administration of law.^ It is well nigh 
impossible, in attempting to follow a *^clew,'' not to 
have in mind the thing to which the clew is expected 
to guide. The dangers, as well as the advantages of 
the legal method, are illustrated in the recent vol- 
ume of Professor Vinogradoff, of the University of 

1 Ancient Law, ch. ii, p. 20. 

2 Gomme makes the point, in Village Communities, page 260, 
** that the identification of manor courts with the old township 
assemblies, and hence with the assembly of the primitive village 
community, cannot be reasonably denied ". But are we sure 
that we really know very much about the old township assem- 
bly to say nothing of the primitive village community ? There 

is a deal of talk about the 'folk-moot' and 'halimote,' etc., 
which is based on rather shadowy knowledge of these institu- 
tions. 



88 



The Mark in Europe and America. 



Moscow.^ The two essays which form the volume, 
The Peasantry of the Feudal Age and The Manor 
and the Village Community^ are the results of Pro- 
fessor Vinogradoff's long and careful study of docu- 
ments of the 1 2th, 13th and 14th centuries, and they 
form a distinct contribution to our knowledge of 
that period. As has already been intimated, it is 
the legal evidence that interests him most, and which 
he has examined with the greatest care. A remark 
in the introduction gives the key to his position. 
'' It is a great, though usual mistake, to begin with 
political events, to proceed from thence to the study 
of institutions, and only quite at the end to take 
up law. The true sequence is the inverse one." 2 
Accordingly, whether dealing directly with the evi- 
dence, or stating conclusions in regard to the con- 
dition of the population, it is the legal aspect which 
he presented. The villain may, according to this 
mode of interpretation, have had a legal status before 
the court, by reason of which we might call him a 
freeman, while he yet remained in economic servi- 
tude.^ Those alone are in serfdom who are in 

1 Villainage in England, by Paul Vinogradoff. Oxford: 1 892. 

2 Ibid. p. 12. 

* One writer has tried to express the value of this distinc- 
tion by the remark that "the Saxon ceorl was not debarred 
from rising out of his position to any office in the state." A 



Discussion of the Later Evidence. 89 

servile slavery. Keeping in mind the sense in 
which this author uses the terms <* freedom'* and 
" serfdom,'* there is much in the results, so far as 
the period from which -the evidence is drawn is 
concerned, to confirm the position of those who 
have found, in the centuries succeeding the Con- 
quest, a steady approach, on the whole, toward greater 
freedom. " In many cases we are able to see how 
freedom and legal security emerge from subjef- 
tion."^ The importance of the changes brought 
about by commutation, and the tendency of those 
changes toward greater freedom is admitted.^ It is 
very evident, also, that the fixity of the customary 
rents which were thus brought about, resulted finally, 
through the rise in prices and the decrease in the 
value of money, in practically transferring the owner- 
ship of the villain's holding from the lord to the vil- 

Fourth of July orator would probably have^<^rg^b^ the same 
thought in the phrase, " The presidenti^ cjai^ir is within his * ^ 
grasp." / ^ ''> ' ^ 

1 Villainage in England, p. 1 78. ^,^ ^ ^, ^ ^ „,,^ , . _ 

2 "One of the great movements of ^e^.i^h and 14th cen- ^ 
turies was toward the commutation of mOne]jj services for rent."^JrY 
Ibid. p. 178. "Commutations gave rise to actual agreements, / 
which came, more or less, under the notice of the l^w," thus/ 
giving the villain a legal standing, p. i82>-*4Comniutation 
was a powerful agency in the process of emancipation." Ibid. 

p. 188. "The wave begins to rise high in favor of liberty 
even in the 13th century." Ibid. p. 131- 



i: 



"u 



i 



I 



I 



I 



90 The Mark in Europe and America. 

lain. The effect of the escape from labor services, 
in establishing a legal freedom along with an 
economical freedom, was much more pronounced in 
the earlier period than in the later. This was due, 
in part, to the scarcity of laborers after the Black 
Death, which caused the manorial lords to insist 
more strongly upon the rendering of customary 
services and servile exactions, after that event. 
There is a rapid increase in the number of free 
tenants. The close of the 12th century witnesses 
stronger assertion of rights on the part of the ten- 
ants as a body, greater solidarity in matters which 
concern themselves, and a disposition on the part of 
the lord of the manor to lay responsibility upon the 
tenantry as a whole.^ The growing freedom of the 
13th and 14th centuries is more apparent when con- 
trasted with the legal disabilities of the nth and 
1 2th centuries. The latter present a dark picture 
of the status of the great body of villains. Vinogra- 
doff thinks that under the influence of Roman law 
and the Roman legal conceptions of slavery, together 
with the attempt at sharp legal definition and classi- 
fication, a large class of the tenantry are made to 
appear in a worse light than they were before the 
Conquest; that is, they have lost their 'technical' 

^ Villainage in England, p. 357. 



I! 



Discussion of the Later Evidence. 91 

freedom. There is a considerable probability in this, 
though there does not seem to be. sufficient evidence 
to show that such was the case. But the question 
is, '' had they in reality lost any practical freedom ; 
were they really in a worse condition than they were 
before the Conquest .? " It is possible that when a 
description of their position should be cast into legal 
phrase, under the influence of Roman law, their con- 
dition would seem more servile than it had seemed 
before. But the tenacity with which they held to 
the customs and laws of pre-conquest times would 
help them to preserve their ancient rights. At any 
rate, the arguments by which it is attempted to 
show that there was a real loss of freedom are far 
from conclusive. It is one thing to assert that " the 
Conquest had cast free and unfree peasantry together 
into one mould of villainage,''^ and another and 
more difficult thing to prove that it did actually make 
any change in the rights and obligation of any 
tenant. It is certainly an important fact that ten- 
ants "in ancient demesne'' were protected by the 
conqueror in the peculiar rights and privileges which 
they had enjoyed on the royal domain before the 
Conquest, but it is a far different thing to prove 
that all Saxon tenants enjoyed the same rights and 

1 Villainage in England, p. 132. 



ill 



92 The Mark in Europe and America. 

privileges as those in the royal manors.^ It is very 
natural to suppose that there were special privileges 
on the royal manors in Saxon as well as in Norman 
times. The fact that the proprietor was both lord 
and king might give the tenants a status in the 
royal courts which others did not enjoy. Mr. Mait- 
land gives an example of the mingling of the func- 
tions of two courts in one and the same court.^ The 
mingling of functions in such a cas-e is not unnatural. 
We are told that on the manors of the king the old 
customs received careful protection; that on the 
manors of the more powerful barons it was "less 
possible to work out the subjection '* ^ Qf the peas- 
antry. Is it not strange, then, that on the manors of 
the less powerful it was not only possible to deprive 
the tenantry of their ancient rights and privileges, 
but to *'get them to believe'' that such had always 
been their legal condition } One would think that 
if "conquest must work toward subjection" the 
result would have been the reverse. And stranger 
still is this, in the face of the explanations that are 
given of the manorial courts, in which we are told 

^ Vinogradoff, 1 23 et seq. 

2 Pleas of the Crown for the County of Gloucester, Introd. 
p. 24. In this case, however, neither of the courts were man- 
orial. 

* Ibid. p. 132, 



Discussion of tJu Later Evidence. 93 

that " the weight of the decision is with the body of 
suitors,'* ^ and in that the body of the court " have all 
the best of it"; and that "the presiding officer and 
the lord whom he represents have not much to do 
in the deliberations," except the drawing up and 
announcing the decision, " which is materially depend- 
ent on the ruling of the court," viz., the body of suit- 
ors. It is distinctly asserted that " the will of the 
lord became more distinct and overbearing in the 
13th and 14th centuries." 2 How was it possible, 
then, to employ a legal machinery, which was in the 
hands of a free, self-governing community, to reduce 
that community to servitude, — a servitude from 
which they began forthwith to recover } 

That there was an intimate connection between 
the anti and post-Domesday periods there can be 
no doubt, but it is somewhat difficult to find in the 
latter period the subjection of a body of freemen 
to legal slavery, unless one approaches the subject 
with the assurance that "the Conquest must have 
worked toward servitude," and with a lingering pre- 
conception of the character of the freedom which must 
have characterized the entire Saxon race. Of course it 

1 Pleas of the Crown for the County of Gloucester, Introd. 

p. 370. 

a Ibid. p. 80. 



94 The Mark in Europe and America. 

may be asserted that there may have been ** elements 
of freedom bequeathed by history but ignored by 
Domesday/' and that rent may be, in some cases, 
"an original incident of tenure,** and there may be 
cases given in which the tenant became degraded; 
it may even be, as Professor Vinogradoff has wisely 
intimated, that the " social evolution in this particu- 
lar curve is a wavy line,*' but the broad fact remains 
that in this particular curve, from Domesday onward, 
events made towards freedom. One of the most 
striking evidences of this will have been established 
if the conclusion at which Mr. Vinogradoff and 
Mr. F. W. Maitland arrived independently, prove 
true, viz., the late evolution of the Court Baron, or 
manorial court of the freemen, as distinguished from 
the customary court of the servile tenants.^ If to 
the earlier manorial court, the halimotCy there grew up 
an additional court, which was more distinctly the 
court of the freemen, it would be what might be 
naturally expected from the growth of that element 
of the social organization.^ 

1 Pleas of the Crown for the County of Gloucester, Introd. 
p. 364. 

2 If this late evolution of the Court Baron should be fully 
established it would destroy the inference of a " duality of the 
primitive settlement" from the '* duality of the manorial court." 
Cf. Earle, Land Charters, LXIII. 



Discussion of the Later Evidence. 95 

Great stress is laid upon the existence of "free*' 
tenants in the village community, the attendance of 
« freemen'* upon the court, and the existence of 
ancient freehold alongside of tenements that have 
become freehold, as showing that " the manorial ele- 
ment is superimposed upon the communal.'*^ It 
would help us in understanding the difficult problem 
if we could know just how much servile labor, just 
how many servile exactions, just what disabilities 
might rest, in any given period, upon one who could be 
called technically free: And then if we could add to 
this a knowledge of just what proportion of the entire 
population might bear this title, we would be still 
nearer the solution of the problem. The escheat of 
tenant holdings to the lord ; the fact that the villain 
holding remained undivided, and did not admit of 
partition by sale or descent; the custom of " Borough 
English'*; and the return to a lord of a holding on 
the death of a tenant, and its regrant by the lord, 
all have been regarded as marks of a servile condi- 
tion. But Vinogradoff would not see in the last, 
evidence of ownership by the lord, but would look 
upon its return and regrant as merely a public offi- 
cial act, to show that the "true owner re-entered 
into the exercise of his rights." 2 He illustrates 

1 Cf. Eaile, Land Charters, LXIIL, p. 408. ^ Ibid. p. 371- 



? 



96 The Mark in Europe and America. 

the point by the Salic law, which provides that when 

a man wants to transfer his property to another 

mark the evidence of the existence of individual prop- 
erty in land in the Salic law — he calls a third party 
and puts into his hand a rod to signify that he gives 
up all claim to his property, and this third man, after 
certain acts symbolical of the ownership he has 
acquired, gives the rod to the second man, the real 
grantee, who is thus publicly clothed with proprie- 
torship. So, says Vinogradoff, the lord or his stew- 
ard is just this third man, who* has come to be the 
one who officially represents the survival of the prac- 
tice. But the illustration proves too much. If the 
lord of the manor has encroached upon the village 
community and monopolized its rights, then it was 
the absolute return of the lord's property into his 
hands on the death of his serf; if it was merely an 
official act of the leading citizen to give public sane- 
tion to the act of two citizens, private, and not com- 
munal ownership, had been the original regime, of 
which this is a survival. 

Yet it is when Vinogradoff goes farthest away 
from the evidence, which he has worked over with 
such care, and nearest to the original arguments for 
the ^^mark" theory, that his conclusions in regard 
to an original free village community are announced 



Discussion of the Later Evidence. 97 

with greatest confidence. After all, it is '' the open- 
field system" ^ which is "in glaring contrast with the 
present state of rights in western Europe," which is 
the basis of the conclusion that the mark must have 
existed.2 " It is evidently communal in its essence." 
"Rights of common usage, communal apportion- 
ment of shares in the arable, communal arrange- 
ments of ways and times of cultivation — these are 
the chief features of open-field husbandry, and all 
point to one source, the village community." Yet 
it is very evident that this does not touch the main 
question, " Was it a dependent or a self-governing 
community ? " Was individual ownership of land or 
communism the basis? "But there is absolutely 
nothing in the manorial arrangement to occasion 
this curious system," ^ by which it is evidently 
meant that it was not necessary that tenants on an 
estate should be assigned intermixed strips, and that 

1 It is the "open field" all through the discussion which 
forms the " backbone " of the theory, though it furnishes no 
proof of the economic relations of the holders in it. Elton 
remarks, *' Our common-field system points to a time when all 
the arable land was held in undivided shares, or was divided 
periodically by lot." Origins of English History, p. 405. 
This seems to suggest an inference as to the economic and 
political condition of the holders which is hardly justifiable. 

* Ibid. p. 399. 

* Villainage in England, p. 399. 



98 The Mark in Europe and America. 

these should be arranged in classes of holdings of 
equal size. "It is not a manorial arrangement, 
though it may be adapted to the manor." Yet the 
same may be said of the community of equal free- 
men. There is "absolutely nothing to occasion" 
a body of equal freemen adopting such an awkward 
system. One might expect all the holdings to be of 
the same size, or at least capable of producing the 
same amount, and surely there would be no advan- 
tage to freemen over serfs in having intermingled 
strips. As is said, " the intermixed strips and indi- 
vidual bundles of equal size find their explanation in 
agricultural necessity," and that necessity is at least 
as likely to arise in a group of dependent as in a 
group of self-governed cultivators. But after all, 
these conclusions from open-field cultivation are not 
closely connected with the great body of Vinogra- 
doff*s investigations, which, upon the whole, must 
form an important element in the reconstruction of 
the history of that period in which the picturesque 
"mark" has found so important a place. It is, 
indeed, a little strange that he should have left the 
mass of documentary evidence, which he has col- . 
lected with so much care, to come down to the 
"open field" for the basis of his most positive 
"conclusions." 



Discussion of the Later Evidence. 99 

The growth of this tendency toward the modifica- 
tion of the old theory is apparent in the mono- 
graph of Professor C. M. Andrews.^ With great 
truth the author of this monograph points out 
the fact that the philo-Germanist historians have 
clothed the ancient Teuton " with those very attri- 
butes which the political ideals of the first half of 
the 19th century were seeking to make real."^ It 
is interesting to observe his conclusion, drawn largely 
from a study of the Anglo-Saxon period, that the 
freeman "did not have full freedom of movement, 
nor of contract," and that "his degradation was 
jurisdictional and economic," ^ notwithstanding the 
fact that he enjoyed " political " freedom. Undoubt- 
edly an advance will have been made when the 
question is shifted from its form, " were the body 
of the population of England from the Saxon 
conquest freemen or serfs.?" to its juster form, 
" what was the condition of the great mass of the 
population?" and when the attitude of historical 
impartiality shall be preserved not so much toward 
the historians as toward history. We may continue 
to juggle with the terms "serf" and "freeman" 

iThe Old English Manor (1892). Published in the Johns 
Hopkins University series. 
2 Ibid., Introd., p. 3. 
« Ibid., Introd., p. 67. 



v> 



!«ii 



loo TJie Mark in Europe and America. 

without getting any truer conception of the social 
evolution of the race. That the period in question 
was characterized by "freedom'* in the modern 
sense, and " democracy '' in the modern sense, would 
now scarcely be maintained; but whether, through- 
out all this period, there has been a steady growth 
from the really unfree to the free, is certainly a 
problem worth solution. It is a part of the larger 
problem of the development of the race. 



V. 



SUMMARY. 

IT is easier to tear down than it is to rebuild, 
and it must be admitted that the results of the 
investigations with which the names of Fustel de 
Coulanges and Seebohm are inseparably connected 
have been more largely destructive than construc- 
tive. Objectionable as it is for historians to have 
to be classed as Germanists or Romanists, it is evi- 
dent that the results thus far are such as to cast 
grave doubt upon Stubbs* somewhat extreme state- 
ment, that " from the Briton and the Roman of the 
5th century we have received nothing.'' ^ On the 
other hand, so far as the continent is concerned, there 
is reason to believe that the influence of the Roman 
villa system penetrated early within the German 
lines and contributed powerfully, together with the 
inherent feudalistic tendencies of the Germans, to 
develop the feudal system. The same tendencies 
that contributed to reduce the earlier colonus to a 
prsedial serf within the Roman limes, also no doubt 

^ Select Charters, Introd., p. 3. 



I! 



«i 



I 



1 02 The Mark in Europe and America. 

operated in Germany upon the weaker free land 
owner to reduce him to a similar condition. The 
practice of " commendation ** ^ to some powerful 
noble, who in return for such subjection afforded 
the protection which the age demanded, and the 
corresponding practice of ''benefices,'' by which land 
was conferred upon followers in return for services 
and on condition of similar subjection, no doubt 
were elements of the highest importance in build- 
ing up the great feudal estates, and in establishing 
firmly the feudal system.^ Similar influences were 
no doubt in operation in England. And it is quite 
probable that, without accepting the extreme state- 
• ments of Coote, who errs as much on one side as 
the so-called Philo-Germanists do on the other, the 
Roman influence established by four centuries of 
occupation did not suddenly cease ; that the Saxon 
conquest did not leave England a tabula rasa, so far 
as the Britons and Romans were concerned. In fact 

^ Cf. the Salic law in regard to commendation, Tit. LXII, i. 
" Si quis alteri avicam terram suam commendaverit." 

2 It would be a great mistake to think of all manorial estates 
as large. No doubt there were many free land owners culti- 
vating with few serfs or none and possessed of small estates. 
Many of these were no doubt swallowed up by the feudal sys- 
tem, but even in Domesday we find great diversity in the size 
of manors, and many of these have a very small villain popu- 
lation upon them. 



Summary. 



103 



the evidence seems to accumulate that both these 
races must be taken into account in the * making of 
England.' No doubt the "multitude of castles'' 
throughout the country, of which Bede speaks,^ as 
well as the Latin speaking class of people of which 
he tells us, indicate the late survival of the Roman 
system.2 Bu^. \^ addition to the evidences of a large 
production of corn in Britain during the Roman oc- 
cupation, and of a large number of permanent estates, 
Mr. Seebohm has adduced strong arguments for 
believing that the three-field system of agriculture was 
due to the Romans, and that it did not exist in that 
part of Germany from which our ancestors came.^ 

1 " Erat et civitatibus quondam nobilissimis insignita praeter 
castella innumera quae et ipsa muris, turribus, postis, ac seris 
erant instructa firmissimis." — Bede, Eccles. Hist., Bk. I. ch. i. 
The language of the texts, as well as his explanations else- 
where, render it hardly possible that only fortified camps were 
meant 

2 Bede, Bk. I, ch. 7. 

" There can be no dispute as to the high civilization which 
Britain had attained in the second and third centuries. It had 
been settled like other Roman colonies, and imperial officials 
had directed the development of its resources." — Cunningham, 
Growth of English Industry and Commerce, I, 52. 

* For evidence of the agricultural occupation of Britain by 
the Romans and the continuation of the Roman influence, see 
Scarth's interesting Chapters xviii and xix, and Appendix i, ii, 
and iii, in Roman Britain. Skene's Celtic Scotland contains 
interesting material on the same subject. 



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104 The Mark in Europe arid America. 

Similarly it must be admitted that he has pretty nearly 
made out his case in regard to the origin of the 
open field with its intermixed strips, viz., that it is 
due neither to the Saxons nor yet to the Romans, 
but was adopted by each as they found it, — a posi- 
tion in which Gomme is in substantial agreement 
with him.^ Seebohm pushes back this system into 
the period of the tribal organization of the Britons, 
and finds its origin in "agricultural necessity," in 
the custom of ^Uoaratiofz^' or joint ploughing, in 
which those uniting in it each furnished a certain 
portion of the plough team of eight oxen, or the 
laborers, or the irons or woodwork of the plough. 
But into a discussion of this it is not our purpose 
to enter. It is enough that it was not brought to 
England and established by the 'Teutonic mark.* 



L 



And further back we are not ready to go. The 



investigation of tribal conditions is but beginning. 
Valuable contributions to the study of tribal life and 
tribal organization, so far as the British isles are 
concerned, have already been made notably by 
Maine, Skene, Sullivan and O* Curry. But these 
do not afford sufficient grounds for generalizations 
as to England, much less for the entire human 

^ Gomme, Village Communities. 



Summary. 



105 



race. The probability is that with fuller knowledge, 
just as has occurred in the biological sciences, the 
line of demarkation between species will gradually 
disappear, and the continuity in the stages of devel- 
opment, from the tribal organization to the feudal 
system, will become evident. 

Full account must always be taken of the complex 
forces which have effected this development. It is 
useless and unreal to attempt to discover, in the 
development of the English people and the English 
constitution, an unmixed line of descent. Account 
must be taken of the ancient Britons with their 
tribal system and modes of cultivation, as well as of 
the ancient Saxons with their tribal system. The 
effect on soil and people and social organization of 
the Roman civilization cannot be ignored. The 
effect of the Romano-British agrarian system and the 
remnant population upon the conquering Saxons in 
that particular stage of their development, must be 
taken into consideration. Scarcely anything is yet 
known, but much must be known of the exact nature 
of the Danish influence.^ It is possible, even, that 
we may not yet have correctly estimated the force and 

1 For an interesting chapter on the Danish influence, see 
Cunningham, Growth of English Industry and Commerce, 
I, 83, et seq. 



1 



io6 The Mark m Europe and America. 

direction of the Norman influence.^ And certainly 
the effect of the christian doctrine, that all mankind 
are descended from a common father, and that all 
alike owe allegiance directly to God, a doctrine 
which by the 14th century had filtered through even 
to the lowest class, must not be lost sight of in 
estimating the growth of the freedom of the great 
mass of the people. It is very poetical, no doubt, to 
trace our modern liberty to a single source in that 
much-be-praised '^German forest/' but it is not 
scientifically adequate. 

It is not overstating the case to say that the evi- 
dence for a free self-governed village community, 
practicing communal ownership of land and form- 
ing the fundamental unit upon which all Teutonic 
society rests, and out of which it arose, is insufficient 
to establish the existence of such a community upon 
English soil or, for that matter, upon that of Ger- 
many. On the other hand, the non-existence of 
such an institution is implied not merely by the 
absence of positive evidence of its existence, but by 
the known facts in regard to an aristocratic social 

1 Cf. the remarks of Professor Channing, on the various 
influences affecting the development of English institutions, in 
The Genesis of the Mass. Town, p. 79, et seq. Also, Elton's 
Origins of English History, p. 2. 



Summary. 



107 



structure, in regard to the private ownership of 
land, and by what we know of the * curve ' of social 
evolution. In its slow sweep for the past thousand 
years we see the great mass of cultivators, who were 
under obligation to labor for almost, or quite, half 
the year at the will of the lord, who were subject to 
servile payments and degrading exactions, who were 
bound to the soil, gradually and painfully carried 
forward to freedom from such degradation with the 
undisputed right to freedom of movement and free- 
dom of contract. As far back as we can see beyond 
this, rank and wealth and serfdom and inequality 
and great landed estates are everywhere to be 
found. It is not unfair to infer that the same curve 
sweeps backward through the slowly changing system 
of cultivation to its beginnings in tribal settlement. 
If there were no other consideration beyond the 
continuity of ideas, this alone would lead to a sus- 
picion in regard to the mark as a " necessary stage 
of development," or as a necessary " connecting link *' 
between institutions so distinctly similar as the feudal 
system and the patriarchal system, from both of 
which it differs so essentially. The mark, with its 
* independent freeman ' who has * never bowed his 
neck to a lord,' who is the 'equal' of all other mark- 
men, is conspicuous for its individualism as well as its 



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1 08 The Mark in Europe and America. 

communism. Its democracy, coming as it does 
between the patriarchal and feudal regimes, and in a 
warlike period which presented so many opportuni- 
ties for centralizing power, is hard to account for. 

It may be gratifying to some to trace the origin 
of the English race by a line of unmixed descent in 
blood and institutions, and to find the origin of our 
liberties near the cradle of the race, but the his- 
torian must be indifferent as to whether he finds 
them there or not, and his attitude must be one of 
inquiry as to whether the English really was so 
unlike all other races that this can be done. It has 
been one of the strong characteristics of the Eng- 
lish people to attach great importance to precedent. 
At every step in the advance in liberty, from the 
demand for the enforcement of the laws of the 
' glorious Edward ' to the American Revolution, it 
has been proclaimed to be the ancestral rights of 
Englishmen. From the Conqueror to Victoria the 
prerogatives of royalty have never been infringed 
upor\, but the people have merely recovered their 
rights. The man who is in sympathy with an ever- 
advancing society will perhaps say, " Let them think 
so ; let them believe that these rights are ancestral, 
if thereby human liberty is increased.'' But the 
historian will say, " Let us seek for the facts ; find 
what grounds you may for your progress." 






VI. 



THE MARK AMONG SAVAGES; PREHISTORIC 

AND MODERN. 

TT TE have already mentioned the very much 
^ ^ wider extension of the village community 
theory than that which was originally contemplated. 
From its position as a Teutonic institution with 
Teutonic freedom, which was thought to be unique, 
it is made first an Aryan, ^ and then an universal 



1 For some criticism of the attempt to liken the Indian village 
community to the theoretic mark, see note A, p. xliv, in Ashley's 
Introduction to Coulanges' Origin of Property in Land. Pro- 
fessor Ashley remarks: " At no stage of Indian agrarian history 
do we find the village community of theory, which is ' an organ- 
ized^ self-acting group of families exercising a common proprie- 
torship over a definite tract of land' (Maine, Village Cotnmuni- 
ties^ pp. 10, 1 2)." " Where the cultivating group are in any real 
sense proprietors, they have no corporate character, and when 
they have a corporate character they are not proprietors." See, 
also, Professor Montague's review of Baden- Powell's Land Sys- 
tem of British India, in English Hist. Review, April, 1893. 
Vol. VIII, p. 392, Mr. Montague sums up: "In neither type 
of village, according to the author of this book, is agrarian, 
as distinct from joint family ownership, to be found. Nor, in 
his opinion, is there any evidence to show that at any former 
period the body of villages held the village land in common. 
He considers that the raiyatwari type of village, the village 




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iio T/ie Mark in Europe and Arnerica. 

f institution. The natural result is, that from being 
' an institution intermediate between the feudal on 
the one side, and the tribal and patriarchal on the 
other, it is pushed further back until it becomes 
peculiarly a tribal institution. Examples are sought 
to establish its universality among such primitive 
races as the North American Indians, the Patago- 
nians, the Fijis, the Basutos, the Dyaks, and the 
"peaceful Arafuras." "The village community is 
thus presented to us as a primitive institution, hav- 
ing a prominent position among the backward races, 
and a subordinate position among the advanced 
races. *' ^ This later tendency to discover traces of 
the village community in all races which have not 
yet escaped from barbarism, of course shifts the 
question entirely, and places it v/here its answer 
must rest upon a larger knowledge of tribal condi- 
tions and savage races than we as yet possess. But 

in which separate property prevails, is the more ancient type 
of the two. . . . But none of these forms are analogous to 
the Russian mir, to the South Slavonic house community^ 
to the Swiss allmend^ or indeed to any rural organization 
in Europe." 

1 G. L. Gomme, The Village Community (1890), p. 16. 
Attention has been called to the radical difference which the 
presence of the chief in the savage communities cited by 
Gomme would make in the mark theory. Cf. Ashley in Pol. 
Sci. Qr., March, 1891. 



The Mark Among Savages. in 

even here the question must be approached with 
some care. It will be easy enough to go back to a 
period " when private property in land was a strug- 
gling novelty,** ^ when nomadic life was giving way 
to settled life. It ought not to be difficult to show 
that at any period, and among any races, civilized or 
savage, groups of human beings have settled together 
and placed their abodes on a definite portion of the 
earth's surface, that they have cultivated a bit of 
soil about their <* village,*' and that they have made 
more or less use of the uncultivated soil lying around 
this; and when these are dignified by the terms 
** village community," "arable land," "waste" or 
"common mark," it may sound like a newly dis- 
covered institution. Men will gather into groups as 
surely as wild animals of a kind. The propensity to 
herd together is strong in this particular animal, 
man. There will surely be a certain concert of 
action among the members of such a group. They 
will adopt such an economy as their previous habits 
and the exigencies of the case require and admit of. 
The similarity of the needs, of the powers, of the 
relations to external nature under which such groups 
are formed, will undoubtedly be paralleled by a con- 
siderable similarity in their economic arrangements. 

^ Pollock's happy phrase. — Land Laws, p. 2. 



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112 The Mark in Europe and America. 

But inductions from these facts as to the existence 
of a definite, social and political institution, whose 
existence has been co-extensive with the human 
race, must be accepted with caution. Meanwhile 
the science of ethnology will be affording us a 
broader basis for generalization. 



VII. 

THE MARK IN AMERICA. 

ANOTHER and still broader conception has been 
evolved from the village community theory. 
This is no less than that the principle from which it 
springs finds its seat deep in human nature itse:f,i 
and is ready to become active whenever conditions 
are favorable. For what else can be the meaning of 
the appearance of the Germanic mark upon American 
soil, the discovery of which has been hailed with so 
much delight ? Of course the English people had 
passed through the bondage of the feudal period. 
Of course generation after generation had lived and 
died, knowing nothing before or behind them but 
serfdom. Of course all knowledge of that primitive 
democracy, in which there was no such thing as the 
private ownership of land, had not only passed out of 
memory but was not apparent in the hidden docu- 
ments of a forgotten tongue. But deep down in the 
inner consciousness of the race, transmitted in some 
mysterious way from generation to generation, and 
uncorrupted by an outward environment, the prin- 
1 Germanists would perhaps say " Anglo-Saxon " nature. 






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114 T/t£ Mark in Europe and America. 

ciple was preserved. The moment it is surrounded 
by favorable conditions in a new continent, sweep- 
ing away the traditions of a thousand years, it leaps 
forth and bears sway in the hearts of men just as 
it did ages ago in the gloomy forests of Germany. 
Surely, here are the traces of a primitive institution 
worth considering. 

But what are the evidences upon which the able 
and conscientious historians, who have told us that 
the early settlers in New England reproduced the 
Germanic mark, have based their conclusions } One 
would naturally expect that a mature man would 
bring to a new colony with him the same ideas in 
regard to property, the same ideas in regard to 
government, the same methods of administration, the 
same economic notions, the same habits which had 
been wrought into him during his previous life. If 
he did differently in the new settlement from what 
he had done before, one would naturally suppose that 
this was due to his new environment. Not some- 
thing in him, but something in //, would lead to the 
adaptation of old modes of thought and action to the 
new conditions. But we are told that these new 
conditions have had the effect of bringing out of the 
settler the methods of the remote past, which had 
hitherto lain unsuspected. " The colonists go back 



The Mark in America. 



115 



a thousand years and begin again," we are told.i 
Even in the choice of name, it is said, they " returned 
unconsciously to the usage of Ine and Whitraed," ^ 
in that they describe these settlements by the words 
town and township which are but the ancient tun 
and tunscipa. But why it is thought necessary to 
regard these words, which were perfectly familiar 
to every Englishman, as a return to Ine and Whit- 
raed is not apparent. 

Of course every fact which goes to show the 
direct continuity of the institutions which were 
established in the new world with those of the same 
people in the old world, is full of interest. It is 
extremely helpful, too, to consider how these were 
modified by the peculiar character of the people 
and the physical conditions of the new settlement. 
These new conditions must react upon the character 
of the settlers, and it is interesting to note the effect 
of such reaction. All facts bearing upon such a 
stage in the development of institutions must be 
welcomed. As has been wisely remarked, " There 
is much to learn by the study of the local begin- 
nings, agrarian and economic, of these United 

1 Howard, Introduction to Local Const. Hist. U. S., Vol. I, 
p. 5,. Cf. also, Johns Hopkins Univ. Studies, Vol. I, p. iS- 
« Ibid. p. 52. 



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ii6 The Mark in Europe and America. 

States." 1 But when it is asserted that the effect 
of such reaction is practically to cause a return to 
the institutions of a thousand or fifteen hundred 
years earlier, when it is implied that the influences 
which have been operating during all these cen- 
turies are insignificant in comparison with the vital 
principle which has been lying dormant, waiting for 
an opportunity to burst forth, then it must be said 
that this is an application of the doctrine of con- 
tinuity for which we are hardly prepared. Professor 
Channing, whose studies of colonial institutions enti- 
tie his opinion to the highest respect, says, with 
great truth, that " there are no sudden breaks in the 
history of the English race." a But a return directly 
to the institutions of the times of Tacitus and 
Hengist and Horsa would be such a break, and it 
is certainly not presumption to question that inter- 
pretation which is put upon facts which would render 
such a conclusion necessary. At least, where it is 
undertaken to establish the reappearance of the 
Germanic mark in America, it cannot be out of 
place to suggest that it would be well to wait until 
we have a little more definite knowledge in regard 
to the character of that institution. May it not, in 

» Adams, Germanic Origin of New England Towns, p. 38. 
« The Genesis of the Massachusetts Town (1892), p. 75. 



~s':. 



The Mark in America. 



117 



fact, be premature to attempt to reconstruct the 
entire constitutional history of America on the basis 
of the Germanic mark, while the very existence of 
that institution is in dispute and growing doubt? 
If, on the one hand, its non-existence as a Teutonic 
institution should be accepted, or, on the other, the 
village community should be shown to be a uni- 
versal form, through which all tribal organizations 
pass, and in no wise a peculiarly Teutonic institu- 
tion, much of the laborious comparison might be 
found to be in vain. 

But even if we should be assured that the Ger- 
manic mark did exist, and that its characteristics 
were those which have been attributed to it, the 
methods by which it is sought to show that it 
reappeared on American soil are not those which 
commend themselves to the scientific investigator. 
It is the peculiar task of the scientific investigator 
to seek for realities underneath the forms in which 
these may be clothed. A mere similarity of words is 
to him at once a danger-signal. Yet it has been one 
of the peculiar features of the discovery of the mark 
in America that it has rested, to a considerable 
extent, upon a phraseology which has become popu- 
lar in the discussions of the mark theory, and has 
been comparatively unknown in ordinary usage. 



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1 1 8 The Mark in Europe and A merzca. 

Even one of the first to call attention to the subject, 
Professor Herbert B. Adams, of Johns Hopkins Uni- 
versity, in that charming paper on ** The Germanic 
Origin of New England Towns,'' makes use of a 
terminology which suggests the comparison, and 
other writers have erred still more gravely in the 
same direction. It is no longer proper in these 
discussions to speak of the village, but the " village 
community y' while the area occupied by house-lots 
and streets must be called ^^the village-mark!' ^ The 
cultivated lands about the village must now always 
be described as " the arable '' or " the arable mark ; ** 
while nothing less than " the waste *' or the '* comfuon- 
mark " will satisfy us by way of description of the 
uncultivated lands, of which,- usually, there was a 
great abundance. Everything that the villagers or 
joint-proprietors do together is described as a " com- 
munal arrangement,'* or evidence of a "communal 
idea." Their meetings are "folk-moots." "Com- 
mon" and "communal," "free" and "freedom," 
suddenly occupy great space in the description of 
the settlements. Besides the phraseology, which is 
supposed to show the striking similarity of the 
New England settlement to the "primitive Teutonic 

^ Cf. Howard, Local Const. U. S., p. 53: "Everywhere in 
New England appeared the house-lots or village mark." 



The Mark in America. 



119 



mark," many actions of the settlers, which were 
those that common sense would dictate under the 
circumstances, are made to suggest the same thing. 
Everything which can be called "communal," or 
which resembles a fact or theory of which we are 
in possession concerning the ancient Teutons, is 
" derived from the forests of Germany." 

Mr. Herbert Adams quotes, as illustrative of the 
return to the Germanic habits, Mourt's relation, 
in which we are told that the Plymouth Pilgrims 
selected for settlement a piece of high, dry ground 
which had already been cultivated, and which was 
near a spring of good water. Now a group of 
men from Timbuctoo would have done no less. A 
herd of cattle on our western plains would congre- 
gate on a pasture of high, dry ground, near plenty of 
good water, if they could find it. Even if we quote 
from Tacitus, ^Uolunt . . . tit fons, ut campus, ut 
nemus placuity' we do not make this very natural 
selection of the settlers due wholly to a Teutonic 
impulse. Then, naturally, they all went to work 
with a will to get things in readiness to protect 
themselves from sufferings and dangers, known and 
unknown. They worked together — note the "com- 
munal" action — to get the hill ready for the ord- 
nance and for their buildings. They erected a " com- 



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i 1 



1 ( 



1 20 TIu Mark ifi Europe and America. 

mon " house (20 ft. square) for their '* common " 
goods. They laid out a little tract, which allowing 
for the "common town street/' must have been 
about 125 X 400 ft, in which "family allotments'* 
are made, each of which was 50 ft. deep, and whose 
width was regulated by the very //^Teutonic principle 
of the number of itidividuals of which the family is 
composed. Thus, we are told, " on this tract of cleared 
land or the village mark, near the spring, which, like 
the springs spoken of by Tacitus, etc., arose the 
first town or village community in New England." ^ 
"The land was taken possession of as communal 
domain, and the first labor bestowed upon it was 
communal labor. But the Pilgrims knew well that 
a principle of individuality must ^ter into the 
development of communal life. Like the Teutons, 
the Pilgrims regarded the family as the unit of 
social order. . . . Like the Teutons, the Pilgrims 
took up land in proportion to their numbers. . . /' ^ 
That is, in order that they might get everybody 
inside the little area on which they built, they 
reduced the number of "families'* to nineteen, and 
then allotted three poles deep and half a pole wide 
— 8^ X 50 ft. — for every individual in the family. 

^ Germanic Origin of New England Towns, p. 25. 
2 Ibid. p. 26. 



The Mark in America. 



121 



But, we are told, " an old Teutonic idea appears in 
the notion of fencing and impaling," which the set- 
tlers proceeded to do, for it is well known that " the 
radical idea of a town is that of a place hedged in." 
Little did our Pilgrim forefathers realize what they 
were doing. They no doubt thought that they were 
constructing a stockade against possible attack from 
savage beasts or men. They were, in fact, recon- 
structing one of the fundamental institutions of the 
Teutonic race. Even gathering wood in the prime- 
val forest was a " good old Teutonic fashion," and 
the cattle pound, which the settlers at a little later 
period found necessary, was a "communal idea." 
In fact, "Plymouth was settled upon communal 
principles of the strictest character," ^ which were 
due neither to copartnership with the London mer- 
chants nor to a spirit of Christian brotherhood, but 
must have been "inherited from Saxon custom." 
The settlers who established Salem, in like manner, 
" found already cleared for their use what the ancient 
Germans would have termed a mark. Here they 
found camporum spatia, the wide, extending spaces, 
in which, according to Tacitus, the Germans found 
division of land an easy matter. There can be little 
doubt that the first settlers of Naumkeag found here 

1 Germanic Origin of New England Towns, p. 33. 



1^. 



ii 



122 The Mark in Europe and America. 

as good an opening as did many German villages in 
the Black Forest or the Odenwald/* ^ But when, 
to establish this reappearance of the Germanic mark 
upon American soil, our attention is directed to the 
fact that the settlers, *just as the ancient Germans,' 
did not build all their houses together with a con- 
tinuous wall, and we have quoted for us with gravity 
the words of Tacitus, " vicos locanty non in nostrum 
moreniy connexis et coliacrentibiis acdificiis ; suam 
qnisqtic domiini spatio ciramtdat,''^ we are ready to 
exclaim, ** What need we any further witness ? " In 
view of the fact that we have such a remarkable re- 
production of ancient institutions, it is to be regretted 
that our information in regard to them is not more 
complete. For instance, when it is asserted that 
" the New England town meeting is the ' moot ' of 
the Anglo-Saxon *tun,' resuscitated with hardly a 
circumstance of differences'^ we see what a flood of 
light it would throw on the town meeting if only 
our knowledge of the Anglo-Saxon ' tun ' were 
more adequate. It ought to inspire us with a pro- 

^ Adams, Village Communities of Cape Ann and Salem, 
p. 14. 

2 Ibid. p. 31. 

^ Howard's Introduction to the Local Constitutional Hist, 
of the United States, Vol. L, p. 55; quoted by Hosmer, Anglo- 
Saxon Freedom, p. 9. The italics are mine. 



Tlie Mark in America. 



123 



found respect for our ancestry to learn that "all 
America lay in that ancient home.'* ^ We are told 
that the Plymouth settlers did so and so, " and, lo, 
when all was done the little settlement was through 
and throughout, as to internal and external feature, 
essentially the same as an Anglo-Saxon * tun,' such 
as a boat-load of the followers of Hengist or Cedric 
might have set up as they coasted searching for a 
home along the isle of Thanet — or further back 
still, the same essentially as a village of the Weser 
or the Odenwald, set up in the primeval heathen 
days.'*^ And so, mirabile dictUy we find the reap- 
pearance of the same ancient "communal ideas,'' 
the same economic arrangements, the same political 
institution, which neither all the forces of the " effete 
Roman civilization," nor the feudal system, nor the 
Christian doctrine, nor anything else had been able 
to change or destroy. And if, unfortunately, the 
settlers had not belonged to the party which soon 
came to be called "roundheads," there is little doubt 
but that we should still have found the " long hair 
proudly floating over a neck that had never bowed 

^ Hosmer, Anglo-Saxon Freedom, p. 10. 

2 Anglo-Saxon Freedom, p. 116. Mr. H. L. Osgood, in the 
Political Science Quarterly, March, 1891, has pithily said: 
" The New Englander of to-day differs from his ancestor in 
Schleswig by the experience and training of fifteen centuries." 



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124 The Mark in Europe and America. 

to a lord/' which, we are assured, was one of the 
striking characteristics of the free Saxon. Is there 
not a danger lest our boundless admiration for Anglo- 
Saxon freedom and Anglo-Saxon institutions, and 
our desire to trace a pure descent in blood and 
institutions, may lead us to put an interpretation 
upon history which may be described as verging upon 
sentimentalism ? No single principle can endure 
unmodified, or is sufficient to account for social 
development. We might assert that the legend, 

"In Adam's fall, 
We sin-ned all," 

accounts for all the ills that human institutions are 
heir to; but it is not in such assertions that the 
chief value of the doctrine of historical continuity is 
to be found. Constitutional and economic develop- 
ment is infinitely complex. It proceeds in the lives 
of men. Character is a more important element than 
environment in the new settlement. There is abso- 
lute continuity. There are no leaps forward or 
backward. All the forces within and without, social 
and physical, are to be considered. And they will 
effect change in character and institutions. The 
follower of Alfred must be different from the fol- 
lower of Hengist. Wat Tyler is not the same as 
the villain of Domesday. But the Puritan of New 



The Mark i7i America. 



125 



England is the same as the Puritan was in Old 
England a month ago, before he set out to America. 
And he brought essentially the same institutions as 
those which he left. What there is new in them, 
what there is progressive, is to be attributed to the 
influence of new conditions upon him and upon 
them. His notions of property have not changed, 
his conception of liberty is the same, his religious 
beliefs and superstitions remain as they were, his 
narrowness, his bigotry, his sturdy character, his 
devotion to duty, his remembrance of self-interest 
even in "communal** arrangements, are quite as 
they were before. And if we would trace all the 
things which entered into his character and his 
institutions, we would have to remember the English 
Bible and Wyclif and Augustine and the Roman 
Law, and the doctrine of * natural rights,' and vil- 
lainage and several other things, quite as much as 
the unruly tribes which Tacitus describes. And 
the beginning of the task will be in the examination 
of the evidence immediately before and immediately 
after emigration. Neither side of the evidence will 
by itself be sufficient. 

There can be no other than a feeling of profound 
respect and even of gratitude to those who have 
sought to interpret American institutional history in 



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126 T/ie Mark in Europe and America. 

the light of the supposed Germanic mark, for their 
contributions to a better knowledge of the develop- 
ment of American institutions, however much we 
may believe their works marred by a one-sided inter- 
pretation of facts. Yet, while there are many things 
peculiar in the character and conditions of the New 
England settlements, it is hardly possible to find in 
them any of the distinguishing characteristics of the 
Teutonic mark theory which may not be otherwise 
accounted for. 

In the first place, it is not worth while to consider 
as evidence bearing upon the survival of the Germanic 
mark, all those things which are due merely to the 
fact that we are human beings and dwell together. 
These things the Puritans did, so far as necessary, 
in their English homes; these things any other race 
of men would have done if thrown into similar cir- 
cumstances. Nor is it worth while to consider those 
things which are due simply to human intelligence 
and the ability to adapt one's self to an emergency. 
In so venturesome an enterprise, it was natural that 
the ingenuity of the settlers should be called into 
play to enable them to " make the best of the situa- 
tion." But these things are perfectly obvious. On 
the other hand it is safe to affirm that the entire 
body of settlers of New England was permeated 



TJu Mark in America. 



127 



by the notion of the individual ownership of land. 
The most fundamental of all the principles of the 
supposed Germanic mark was wanting, viz., that 
there can be no ownership of land. This is made, 
and is, in fact, the most fundamental conception of 
the theory. It is made, — and is — entirely distinct 
from the notion of joint ownership by two or more 
proprietors. The operation of partnerships or cor- 
porations exercising a joint control over their prop- 
erties was sufficiently well known in the 17th 
century. Temporary makeshifts in settlement, or 
even arrangements which, under the stress of the 
conditions of subduing a wild country, were main- 
tained for a considerable time, are not to be re- 
garded as exhibiting the fundamental principles of 
organization. Not only had the settler no other 
intention than that of becoming the private owner 
of landed property, but "the private law of real 
property in New England, was, in the main, that 
of the mother country." 1 It is not the mere fact 
of the unbroken succession of the titles from the 
crown through the Plymouth Company, the Council 
of New England, the Massachusetts Bay Com- 
pany, the General Court, the township or individual, 

1 Egleston, Land System in the New England Colonies 
(1880), p. 45- 






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128 T/ie Mark m Europe aiid America. 

but the more important fact that the people ex- 
pected to and did own their own lands, whether 
divided or undivided which proves this. That in 
some cases there were settlements without due 
authority, is nothing to the purpose, and such 
irregularities did not long continue.^ Land owner- 
ship was, indeed, a fact of almost fundamental 
importance in the New England settlements and 
governments. 

The "equality" of the ancient "mark" is not 
apparent in the settlement of the new world. As it 
has been well put, " In the division of the soil our 
ancestors were guided by no visionary theories of 
equality." ^ We find the amounts of land granted 
to individuals varying from small house-lots to tracts 
of 3200 acres, though large grants were excep- 
tional, and were usually made in payment of advances 
or of services.^ While the grants were kept design- 
edly small, they were designedly not equal. 

The combination of commercial, religious and 
political elements makes it somewhat difficult to 

^ "After 1640 no one was permitted to settle on the vacant 
lands within the chartered limits without permission." Chan- 
ning, Town and County Gov't in the Eng. Col. of N. A. (1884), 
p. 24. 

3 Egleston, p. 145. 

* Ibid. p. 19. 



The Mark in America. 



129 



assign to each its relative importance. An element 
that cannot be overlooked is thus stated: **But in 
point of fact and legal conception, it (the charter of 
King Charles of 1629) merely brought into being an 
English commercial organization — in other and 
modern words, it was a 17th century act of incor- 
poration, and as such in no way peculiar.*' " It was 
a trading company, in which provision was made for 
the establishment, and, incidentally, for the govern- 
ment of a plantation in an uninhabited land. And 
this trading enterprise, involving a real estate specu- 
lation, resulted in a Commonwealth.'' ^ The same 
author adds, '' The act of commercial incorporation 
was almost immediately converted into something 
very like a civil institution." ^ But while this state- 
ment calls attention to an important truth, especially 
so far as the origin of the land ownership is con- 
cerned, and in a less degree to the early mode of 
administration, it bears the impress of a failure to 
realize the true purposes and controlling influence 
of the settlement. It was not, primarily, a land- 
jobbing enterprise. If the form of a commercial 
organization was taken, it was but an artificial 

1 C. F. Adams, in " The Genesis of the Massachusetts 
Towns," p. 28. 

2 Ibid. p. 30- 






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130 T/ie Mark iii Europe and America. 

method of accomplishing the real purpose. The 
authority to exercise governmental functions which 
was a subordinate element in such commercial en- 
terprises, in these cases became of the highest 
importance. The commercial aim sank into insig- 
nificance by the side of the aim to establish homes 
and institutions. Even the "commercial" form 
quickly gave way to the forms made necessary by 
the real nature of the colonization. 

The form of organization, according to Professor 
Channing's view, depended on, **(i) the economic 
conditions of the colony; (2) the experience in the 
management of local concerns which its founders 
brought from the mother country; and (3) the form 
of church government and the land system, which 
should be found expedient.*' ^ The blending of the 
charter of a commercial company with the secular 
and church governments, with which the colonists 
were familiar, no doubt did largely determine the 
form of local governments. But some of the 
features of the system developed were, as has been 
suggested, due to the fact '' that it was accom- 
plished by organized colonization/' 2 gQ^h in the 

^ Town and County Govt, in the Eng. Colonies of N. A., 
p. 5. 

2 Egleston, p. 44. 



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Tlie Mark in America. 



131 



transplanting of colonies from England and in the 
forming new settlements out of the old, this inter- 
nal organization on the basis of ties of acquaintance, 
or religion or what not, and the external care and 
selection and direction by central authority, are 
facts of prime importance. For while the internal 
tie operated within certain limits, the external power 
was the source of the property rights, and pre- 
scribed the rights and privileges which should be 
enjoyed. In the case of the Massachusetts Bay 
Company, rights, proprietary and governmental, were 
granted to individuals and to groups. The ''Gen- 
eral Court" was the company's successor as the 
source of proprietary and governmental rights. 
'* The General Court adopted the system of grant- 
ing lands in townships to seven or more individ- 
uals who had, as a rule, the absolute disposal of the 
lands so obtained." ^ These persons, who formed 
the "freemen," or "commoners," or "proprietors" 
of the township thus organized, were the absolute 
owners of the tract,. so granted, and the only future 
source of ownership for any part of the land was 
to be found in them. 

The grants sometimes may have been large in 
proportion to the number of proprietors, and some- 

1 Town and County Govt, in Eng. Colonies of N. A., p. 24. 



■]! 







132 The Mark iri Europe and America. 

times were purposely large to allow for the increase 
of inhabitants due to children and servants, and per- 
haps also to new settlers that might be admitted.^ 
There was perhaps sometimes a moral obligation 
resting upon the proprietors to make grants to new 
settlers, on the principle, ^' Freely ye have received, 
freely give." But there can be no doubt not only 
that the legal title rested with the original grantees 
but that it was in most cases claimed and exer- 
cised by them. The position of these original 
grantees is well stated by Mr. Egleston.2 *' The 
commoners were originally those to whom the 
General Court had made a grant of land in com- 
mon for settlement, very often, as we have seen, 
without giving the grantees entire unfettered con- 
trol. They formed, as has been held, a quasi 
corporation having the power of . other corpora- 
tions for certain specified purposes. The right of 
a commoner might be conveyed or inherited like 
other real estate, and one who thus became entitled 
to a right was not necessarily an inhabitant, nor was 
he necessarily entitled to vote in the town meetings 
where township privileges had been conferred upon 
the inhabitants of a plantation. On the other hand, 
it by no means follows that because a man was en- 

1 Cf. Winthrop's statement, quoted by Egleston, p. 26. 

2 Ibid., p. 29. 



The Mark in America. 



133 



titled to vote in the town, he was also entitled to a 
voice in the control of the common lands, or that 
he had any right to them whatever. The land com- 
munity and the political community were distinct 
bodies, capable of dealing with other persons and 
bodies and with each other as separate juristic per- 
sons. Thus we find votes of the town according 
rights to the proprietors, or even making engage- 
ments with them. The proprietors, too, might make 
grants to the town as to any other parties.*' ^ 

When the proprietors and the inhabitants were 
identical there was sometimes a natural blending 
of their prerogatives as citizens and land-owners. 
The need for plow lands and grass-lands, the cost of 
making and keeping up fences, and the haste neces- 
sary in constructing them in new settlements often 
led to the enclosure of lands together. " Necessity 
constraining the improvement of much land in 
common," 2 as the record puts it, several proprietors, 

1 Such a description is in striking contrast with Aristotle's 
categories of the possible forms of communism, which were, 
(I) the soil an individual possession, while its produce goes 
into a common stock, (2) soil owned in common while its pro- 
duce belonged to the individual, (3) both soil and produce in 
common. — Republic, Book II, ch. iv. 

2 Conn. Col. Rec. I, loi, quoted by Egleston, p. 41- The 
" necessity " of making improvements in common for the sake 
of greater safety and economy is illustrated at a much later 



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134 T/ie Mark in Europe and America. 

or all the proprietors of the town, fenced one or more 
fields in common. But it is evident that in most of 
these cases there was not even joint ownership. 
We are told that the bounds of such lands lying in 
common were to be frequently perambulated by the 
particular proprietor and the boundary marks rigidly 
kept.i These plats of land could be bought or sold 
or bequeathed or subdivided. Bodies of land were 
sometimes held in undivided joint ownership, but 
joint ownership is no uncommon thing in any age 
of the world. In this case its management must 
necessarily take place by the body of its owners, 
who were styled '^freemen," "commoners" or "pro- 
prietors," any one of whom ordinarily could dispose 
of his individual share. Even where the so-called 
"common" land under a single fence was held in 
severalty, it was natural and necessary that the 
group of proprietors should adopt regulations for 
the keeping up of the fence, the pasturing of the 
stock and other inciden . - > [ the management of a 

date by a statute of Virginia recorded in Hening, Vol. X, p. 39, 
which says, *' And whereas several families for their greater 
safety have settled themselves in villages or townships, under 
some agreement between the inhabitants of laying off the same 
into town lots, to be divided among them, and have from 
present necessity, cultivated a piece of ground adjoining thereto 
in common ; Be it enacted,'' etc. 
1 Egleston, p. 42. 



The Mark in America. 



135 



joint property. In such cases there is hardly any 
other method open than to submit matters affecting 
common interests to the decision of a majority of 
the proprietors, and it is not unnatural and by no 
means unheard-of that legal enactment should render 
such corporate action binding. If the enduring "life 
principle" of the village community is embodied in 
the proposition that "shareholders are subject to the 
will ot the majority," ^ it can hardly be said to be a 
new discovery of the Germanic mark on the new 
continent. There are abundant illustrations of 
communal ownership and management from the 
earliest period of settlement to the present day, 
but in most cases these are but examples of what 
was already a common practice, viz., the joint 
ownership of an undivided but not undividable 
property.^ In the methods of management of 
these joint properties, or individual properties under 
a common fence and common regulations, there is a 
strong likeness to the manorial regulations with 
which the settlers were familiar. Of course in many 
cases "commons" were given to towns, or were 

1 Germanic Origin of N. Eng. Towns, p. 37. 

2 It should be remembered that it is a fundamental propo- 
sition of the village community theory that the mark " belongs 
to the freemen as a whole, not as a partible possession." — 
Kemble's Saxons, I, p. 37. 



\\ 



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136 TAe Mark i7i Europe and America. 

provided for in the original settlement, a most 
natural outgrowth of manorial customs. The reser- 
vation of such a "common'' or park by the founders 
of a modern city would be very natural, and yet 
would not imply any "return" to communal owner- 
ship of land. The specific reservation of "Five 
Hundred acres of land for public uses as for build- 
ing of a Towne, Scholes, Churches, Hospitalls and 
for the maintenance of such ministers, magistrates 
and other local officers as might be chosen by the 
corporation,'' 1 was very praiseworthy and natural 
and modern, but it is precisely the thing a com- 
munity based on communal land holding would not 
have done. When it is said that "originally, the 
whole region round about the first settlement (of 
Salem) was common land," 2 it must be understood 
in a different sense from the assertion that " all land 
is at first 'common land,' " as applied to the original 
occupation of the soil. As a matter of legal theory 
and of accomplished fact the lands of the original 
American settlements were the property of the 
crown, and passed from the crown to individuals 
or corporations, and from these to actual settlers 
either individually or in groups, and so by an 

^ Vill. Com. of Cape Ann and Salem, p. i. 
^ Ibid. p. 36. 



The Mark in America. 



137 



unbroken succession to the present holders. If 
there were " squatters " upon the lands during any 
period of their history, and if this occupation was 
allowed to grow into a pre-emptive right, it in no 
wise affects the question at issue; but simply illus- 
trates the method by which occupation and use 
harden into a right to the thing so occupied and 
used. Indeed there is an instructive lesson in the 
method by which popular privileges grow which 
throws light backward upon the early history of 
the English. The struggle which was made by 
later comers, in various settlements, for control and 
ownership in the property of the original corpora- 
tion, and the measure of success with which they 
often met by means of their greater numbers, are not 
without historical parallel. The struggle of the new 
comers against the original settlers, — the popular 
class against the wealth and aristocracy, — has been 
an important element in the development of more 
than one nation. We see in it how "common rights " 
grow. But however strongly we may sympathize 
with the result attained, or however much we may 
feel that the original incorporators were under a 
moral obligation to share their good fortune with 
the later comers, it cannot blind us to the fact 
that the triumph of the latter was simply a sue- 



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138 T/ie Mark in Europe aiid America. 

cessful encroachment upon the legal rights of the 
former. 

One of the elements of the original commercial 
companies from whose legal rights those of the 
settlements sprang, was the governmental power, 
which the nature of the case rendered necessary. 
Circumstances soon gave to the governmental 
power an importance which reduced the commer- 
cial to insignificance. Fortunately, the granting of 
property rights passed into the hands of the Gen- 
eral Court, and circumstances gave to this a 
strongly democratic character. Mutual fears and 
dangers, and above all, the overwhelming influence 
of the religious element, developed the closely-knit, 
compact, self-governed groups, which are so striking 
a characteristic of the New England settlement. 
The elements all existed immediately before the 
settlement. The combination of these, under the 
new conditions, produced phenomena which might, 
perhaps, be described as new, but of which the 
essentials were all old. A careful comparison of 
the English model with the American community at 
its beginning, may show that the differences are 
very slight. The ''communar' features were those 
which were due to the loneliness and dangers of the 
wilderness, and to a strongly centralizing church 



\ 



The Mark in America. 



139 



system; and perhaps, in a degree, to the example 
of the English manorial life. They were not due 
to communal land occupation. They were not due 
to any absence of individual ownership in land. 
The "equality" of the mark is not visible, either 
in land-holding or government. Even the democ- 
racy is not of that "idyllic" character which the 
mark theory presents. 

The communal and the democratic features of the 
new settlement are, indeed, interesting. The mighty 
impulse given to the growing spirit of liberty and 
self-government in the English race by this Amer- 
ican colonization cannot be overlooked. But it was 
merely a greater stride here in an advancement 
which was taking place more slowly, but none the 
less surely, there. The connection was unbroken. 
There was less to hamper it here than there. And 
in the movement was embodied all the elements 
which the race had gathered in fifteen centuries of 
progress, not the least of which were new concep- 
tions of law, and a truer conception of the basis 
upon which all human liberty rests. The German 
democracy, such as it was, rested on a substructure 
of serfdom and slavery, and ignorance of the rights 
of man as man. The new democracy, whose coming 
the American settlements hastened, acknowledges 



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140 T^ Mark in Europe and America. 

no such origin. If one wishes to trace the ever- 
widening stream to its sources, he will no doubt find 
that one slender brooklet heads in the German forest, 
but only one. 



lil 



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. VIII. 

THE MARK IN ECONOMIC DISCUSSION. 

IT is, perhaps, to be expected that a healthy, 
normal individual, in the present day, will be 
in sympathy with the democratic tendencies of the 
age, and that he will rejoice in the triumph of the 
masses over the classes. But it is a curious fact, 
illustrative of a striking characteristic of the Eng- 
lish race, that we cannot rest easy until we have 
the assurance of historical precedent. The triumph 
must prove to be the realization of some right or 
privilege of which we have long been deprived. It 
matters not if ages have passed over the buried 
right; all that is necessary is that the past should 
furnish a justification for its present existence. 
This conservative trait has useful consequences, 
but it ought not to prevent us from resting our 
demand for the better, upon the true, rather than 
upon the untrue. It is not likely that the course of 
human progress will be retarded by putting the 
" Golden Age '' in front, instead of behind us, or by 
a popular knowledge of what the race is proceeding 
from^ and what it is proceeding towards. If democ- 



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142 T/ie Mark in Europe and America. 

racy is the ultimate goal of mankind, let it be shown 
to be so from the nature and needs of man. If 
altruism ought to end in communism, there is no 
need of an historical example. If individual selfish- 
ness should give way to the public welfare, it is not 
because the history of mankind shows that it has 
heretofore done so. If individual ownership of land 
is an unmixed evil, let a demand for national owner- 
ship, or international ownership rest on its tru 
basis. It should not be deemed necessary that such 
causes should struggle to get a foot-hold on the poor 
Teutonic mark, as a place of beginning. Yet, while 
it is asserted that "if it were true that land had 
always been treated as communal property, that would 
not prove the justice or necessity of continuing it," ^ 
yet the assertion that the original form of perma- 
nent land-holding was communal is made to serve 
as the basis for the demand for what its advocates 
are pleased to call a "return" to communal owner- 
ship. " All land was once occupied and cultivated 
in common, therefore all land should now be com- 
munal," is the force of the argument. But if 
the premise rest on insufficient grounds, what 
becomes of the conclusion >. Even when the premise 
has been admitted, it is not surprising that we should 

1 Henry George, Progress and Poverty, p. 331. 



TIu Mark in Economic Discussion. 143 

see it made the basis of directly opposite con- 
clusions. On the one hand, it has been made the 
basis of arguments to show that the evolution of 
private property in land had been the means of 
advancing the welfare and prosperity of the human 
race, and contributing towards its highest develop- 
ment; and, on the other hand, to show that the 
only possibility of human advancement would be in 
the "return" to primitive, communal ownership.* 

In the attacks upon the institution of private 
property in land, the charge that historically it had 
its origin in robbery, rests upon two distinct bases 
which are confounded. The one is that all the land 
originally belonged to all the people, and that some 
of the people have taken charge of some of it to 
the exclusion of the rest of the people. The other 
is that by war and conquest, and theft, the lands 
have changed hands in the course of the ages, and 
that hence the present ownership is unjust. Yet in 
the latter case the principle of ownership is not in 
question, but the possibility of undoing the results of 
a series of wars and restoring property to its rightful 
possessor. There could have been no robbery of 
the land by conquest if there had been no ownership 
to begin with. It is one thing to assert that the man 
1 Cf. Ashley, Introd. to Origin of Property, p. xliv. 



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144 The Mark in Europe and America. 

who has stolen my pen-knife possesses it unjustly 
and quite another thing to prove that ownership of 
pocket-knives is founded on injustice. Yet these two 
Ideas are constantly confused. It is not this vio- 
lent taking of property from one man by another 
man that is in mind when the "restoring " and the 
"returning" of the land to its original ownership is 
talked of. It is not that Jute robbed Briton, and 
Norman robbed Saxon that is complained of, and 
would be remedied; it is that any should have taken 
possession of and held for private use any portion 
of the earth's surface; and the "restoration " aimed 
at IS the taking away of such lands from their 
possessor, and the bestowal in some way of their 
use upon all men. The " resumption of land as 
common property," which is so freely talked of, has 
nothmg to do with the wars and conquests, which 
have been as destructive of property rights as of 
life, but looks back to a supposed condition of things 
before landed property began. "All land was In 
the beginning common land," we are told. "Com- 
mon right to land has been everywhere primarily 
recognized, and private property is the result of 
usurpation." 1 "Everywhere the common right of 
men to the use of the earth has been recognized, 

1 George, Progress and Poverty, p. 332. 



The Mark in Economic Discussion. 145 



and nowhere has restrictive ownership been freely 
adopted." ^ " Historically private property in land 
is robbery." 2 "Everywhere has existed common 
property in which the rights of all were equal." ^ 
" The idea of individual property in land is derived 
from Rome."* "In all primitive society the soil 
was the joint property of the tribes, and was sub- 
ject to periodical distribution among all the fam- 
ilies so that all might live by their labor as Nature 
ordained." ^ " Cest seidcnicnt pas line serie de pro- 
grh succcssifs, et h tine ^poque relativement rkente,, 
que s'cst constitute la propri^t^ individuelle appliqui 

1 George, Progress and Poverty, p. 333' 

« Ibid. p. 333. 

« Ibid. p. 333. 

* Ibid. p. 335. Mr. George should not have forgotten Abra- 
ham's offer to the children of Heth, " I will give thee money 
for the field," and their reply, " the land is worth four hundred 
shekels of silver ; " and the result, " and Abraham weighed to 
Ephron the silver, current money with the merchant. And the 
field of Ephron which was in Macpelah, which was before 
Mamre, the field, and the cave which was therein, and all the 
trees that were in the field, that were in all the borders round 
about were made sure unto Abraham for a possession in the 
presence of the children of Heth before all that went in at the 
gate of the city." Genesis 23. But perhaps it was thought 
impossible to trace the continuity of the " idea " from a non- 
Aryan source. 

« Laveleye (Prim. Prop., p. xvii), as quoted by George, Prog. 

and Pov., p. 334. 



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146 T/ic Mark in Europe and America. 

a la tcrrcT^ Laveleye again tells us that the 
exclusive dominium, personal and hereditary, applied 
to land is a fact relatively very recent, and that for 
a long time men knew and practiced only .collective 
possession.2 He tells us that the generally accepted 
theory of property must be reconstructed, because 
it rests on premises which are directly contra- 
dictory to the facts of history and to the conclusions 
to which these lead.^ We are assured that the 
socialistic policy is but a return to the ancient order 
of things;^ from which we are supposed to infer 

1 Laveleye, De la Propri^t^, p. 4. 

2 Ibid. Introd., p. xii.; cf. also Ibid. p. 380. 
^ Ibid. p. xviii. 

* '' L'idee socialiste est chez nous un heritage de Tancienne 
regime . . . cette fa^on d'entendre la liberty n'est pas n^e des 
predictions modernes, ni des promesses des demagogues, ni de 
I'abus de la presse; elle proc^de de souvenirs et de traditions 
que rien ne peut effacer."— M. Silvela, as quoted by Laveleye, 
Ibid. p. 338. '* Communal property . . . was an old Teutonic 

institution, which lived on undercover of feudalism." Karl 

Marx, Capital (translated by Aveling), Appleton ed. 1889. 
The same assumption of the original communal ownership of 
land by Teutonic society is evident throughout Marx's writings. 
The same assumption is to be seen in Fr. Engel's Preface 
(1883) to the manifesto of the Communist League ...".. that 
accordingly (since the dissolution of the primitive common 
property in land) the entire history is a history of class strug- 
gles—struggles between exploited and exploiting, ruled and 
ruling, etc." — As quoted by Kirkup, History of Socialism 
(1892), p. 160. 



TJie Mark in Economic Discussion. 147 



that, therefore, it should receive ready acceptance. 
We are told that most jurists and economists *^have 
established ownership on hypotheses contradicted 
by history, or on reasonings whose necessary con- 
clusions must be in opposition with that which they 
wish to show/' 1 all of which, if true, would place the 
rights of property on a slender foundation. But in 
this statement there lurks a suspicion of that most 
mechanical supposition, which one finds not at all 
infrequently, that property is somehow the creation 
of the lawyers and the theorists. It is the creation 
of the race. Lawyers and theorists have just about 
the same relation to it that grammarians have to 
language and literature. It may, indeed, be affirmed 
that the race has made a mistake in developing 
this institution, but this must appear on its own 
grounds. It is not surprising, considering the tre- 
mendous conservative force of an institution resting 
on the theory and practice of the race for ages, that 
those who seek to bring about changes in the present 
order of things should shrewdly attempt to weaken 
the historical support. Such a development of an 
institution by the race is not only regarded but is 
strong presumptive evidence of its importance and 
value. 

1 Laveleye, De la Propriety, p. 379. 



f 



in 



:L 



1 



148 T/ie Mark in Europe and America. 

Even Mill, who does not appear until very late to 
have been affected by the theory of the Teutonic 
mark,i but regarded "the feudal family" as "the 
last historical form of the patriarchal family," 2 
was so impressed with certain crying evils in the 
English land system that he speaks of "the bulk 
of the community " as being "disinherited of their 
rights." 3 But Mill's views in regard to land hold- 
ing were based upon other considerations than his- 
torical evidence of communal holding of land. Yet 
he hailed the appearance of the mark theory as an 
aid in reforming the land system because it would be 
" a powerful solvent of a large class of conservative 
prejudices," and because "it opens up the question 
whether the earlier or the later ideas are better 
suited to our purpose." * It is what Sir Frederick 
Pollock speaks of as the " absolute and unlimited and 
ingrained idea of private property in land,"^ that 
Mill objects to. His position was that private 
property did not have its foundation in the nature 

Mn fact the theory is said to have attracted little attention 
in England until the appearance of Nasse's pamphlet (1871) 
and Sir Henry Maine's Village Communities (1871). 

2 Mill, Prin. Pol. Econ., Bk. II, ch. 2, § 3. 

» Ibid. Bk. II, ch. 2, § 6. 

* See his Review of Maine's Village Communities in the 
Fortnightly Review, 1 87 1 , Vol. I, p. 544. 

* Land Laws, pp. 15, i6, foot note. 



The Mark in Economic Discussion. 149 

t 

of things, in eternal right, but that it was an inven- 
tion of man, and like other inventions, even if good, 
'must perforce give place to better/ He objects to 
the political thinkers who "may have been over- 
confident in their power of deducing systems of 
social truth from abstract human nature," ^ and he 
welcomes the village community theory as showing 
that "property in land has not been, and is not, one 
simple idea, one conception of rights always the 
same/' 2 He looked upon the village community 
theory as merely clearing the way for the proposal 
of any new theory which might promise to better 
the condition of the race, though he did not per- 
sonally look forward to the entire abolition of 
private property in land.^ Believing as he did 
that land is essentially different from other kinds 
of property, and impressed with the evils to society 
resulting from the existence of great landed estates, 
he was ready to welcome anything which should 
weaken the force of the historical precedent for 

1 Fortnightly, 1871, I, 543- 

2 Ibid. p. 549. 

« M. de Laveleye gives an interesting letter from Mill in 
which after expressing his interest in Laveleye's work he says, 
"Mais je ne crois pas que Ton puisse nier que les reformes k 
faire dans Tinstitution de la propri^td consistent surtout k 
organiser quelque mode de propri^t^ collective en concurrence 
avec la propridt^ individuelle." — Prim. Prop. p. xiii. 



Ii 



150 The Mark {71 Europe and America. 

landed property, and it is with evident satisfaction 
that he calls attention to the fact that even **in 
England, for some time past, the idea of absolute 
property in land has been sensibly weakened/' ^ 

The mark theory which asserts the ** natural right,'* 
as Henry George calls it, of every man to the use 
of the land, and which denies the right of any to 
the ownership of land, has been closely connected 
with the mark theory which is supposed to repre- 
sent the '^natural " form of landholding. In this day 
when there is a general disposition to sniff at '* natural 
rights'' as an effusion of the philosophic brain, the 
historical support of communism is likely to prove 
stronger than the philosophical. "I have a prop- 
erty in myself," says a recent writer.^ **! have the 
right to be free. All that proceeds from myself, 
my thoughts, my writings, my works are property ; 
but no man made the land and therefore it is not 7 
property." The possibility of carrying into effect 
such a distinction could be realized more per- 
fectly if it did not seem necessary to embody '' all 

1 Fortnightly, 1871, I, 552. MiU had the highest possible 
respect for vested rights and it was only so far as the future 
increase in the value of land, due to increasing population, was 
concerned that he desired its appropriation by the state. 

2 Joseph Fisher, History of Land-holding in England (1875), 
Intro. 



The Mark m Economic Discussion. 151 

that proceeds from myself" in some material form. 
Great use is made of the phrase, '^ The land, like 
the air is the free gift of Nature," or -the free gift 
of God to man," — if the one who repeats it chances 
to be of a religious turn. Well, what is not? 
Certainly, land is the free gift of God to man, and 
so is every other natural substance and natural 
force of which we are cognizant. The soil, the 
water; wood, iron, stone for shelter; sheep for 
wool, the cotton plant for cotton; animals and 
plant life for food; the powers of growth; the 
physical forces; — all are the free gifts of nature. 
They not only stand waiting to be used, but if man 
does not use them he must perish. But to use them 
one must have undisputed possession of the natural 
substance upon which his labor is expended in fitting 
it for use. This is as true of the soil as of the iron 
or wood, the wool, the horse or the cow. The denial 
of the possibility of ownership in the one is the 
denial of the possibility of property in all. A classi- 
fication of property into movable and immovable, or 
in a dozen other ways is possible, but a classification 
into things which are "the free gifts of nature" and 
those which are not, is not possible. There is no 
essential difference in the nature of the material 
basis of the objects of ownership. If it is urged 



■! ' 



s:^! 



f 



I 



152 T/ie Mark in Europe and America. 

that the soil is limited in extent, it may be replied 
that almost all other material substances are more 
limited, and furthermore that when used they are 
destroyed forever. If it is meant that all material 
substances are to be classified under the term land, 
then not only is it made more difficult for the indi- 
vidual to secure possession of the material upon 
which his labor must be bestowed, but absolute 
ownership in anything is rendered impossible; the 
more limited and destructible the material the more 
impossible is the idea of ownership. 

Whatever may be the philosophical justification 
of property, or whether it have any or not, it cannot 
be successfully maintained that there is any sufficient 
ground for a distinction in ownership in the various 
kinds of natural agents upon which labor has been 
expended, and which to a greater or less extent 
embody it. Even if we were to attempt the niceties 
of distinction which St. Thomas Aquinas makes 
between objects ^' whose use is their consumption" 
and objects^* whose use is not their consumption," 
we could not get a classification of natural agents, 
from the enduring iron and the less enduring soil, 
to the delicate morsel or precious perfume that 
perishes in the using, which would justify us in 
saying, '' this by ' natural right ' may become prop- 



The Mark in Economic Discussion. 153 



erty, and this may not.'' Property in land has 
precisely the same philosophic basis as other kinds 
of property. Say, if you will, that property in 
slaves had as good a basis; but slavery has not 
been overthrown by declaring that slavery in the 
past is an historical myth. No more will property 
rights be overthrown by such an argument, even 

if justified. 

Nor is the possibility of an *' unearned incre- 
ment" peculiar to land. It is unimportant that 
such " unearned increment " is, in the normal case, 
much less frequent than is sometimes supposed.^ 
If it ought to go to society at large, then it would 
be wiser to make objection to the private owner- 
ship of "unearned increments," than to the private 
ownership of land; and other forms of property 
would furnish abundant instances in which the 
" unearned increment " might be claimed. 

One may see evils in the control of large areas of 
land by a few individuals, but this can no more be 
taken as proof of the iniquity of private ownership 

1 Therold Rogers says that he had long ago come to the 
conclusion that "very possibly the * unearned increment' of 
the future was entirely hypothetical and probably visionary, 
certainly too doubtful to admit of being made the basis of a 
gigantic operation." — The Economic Interpretation of His- 
tory, p. 516. 



f 



I ; 




I 




154 The Mark in Europe and America. 

of land per se, than the benefits of small peasant 
proprieties can be made its justification. The 
evils charged may be good grounds for criticism of 
the causes which have produced and perpetuated 
large landed estates ; they may be grounds for plans 
for the easy division, alienation and transfer of landed 
property; but they are not good grounds for objec- 
tion to the institution itself. And when the attack 
upon private property is made to receive its chief 
support from a supposed form of primitive land- 
holding, we see the possibilities of the uses to which 
an historical dogma may be put. 

That in the process of the evolution of prop- 
erty, not every kind of property came into exist- 
ence at the same time, may be taken as a matter 
of course. That property in land was of much 
slower development, and could not have preceded 
permanent settlement, is pretty certain. That the 
family was the ''individual,'' in all forms of prim- 
itive ownership, may be regarded as pretty well 
established. That property is thus an institution 
created by man in the course of time can doubt- 
less be maintained successfully. Some forms of 
property, which now are supposed to find ample 
justification, such as those guaranteed by patent 
and copy-rights, are of very late development. They 



The Mark in Economic Discussion. 155 

apparently need no historical justification. And 
it will be very hard to convince men that indi- 
vidual property does not correspond very closely to 
the nature and needs of all men ; that it has not, in 
some form, shown itself among all men ; that it has 
not, upon the whole, been a beneficent institution. 
It will be hard to convince them that property in 
land is peculiar, and unlike other property. It will 
be hard to convince them that the Germanic mark 
occupies such an important place in determining the 
nature of our institutions, — at least, until there is 
more evidence for its existence. 

The way in which an historical dogma comes 
to affect all social, political and economic insti- 
tutions, is a perpetual caution to one who would 
investigate their origin. Inductions from present 
observation to past conditions, or from past condi- 
tions to present duties, are not to be made hastily, 
or without large allowances for errors. The hypoth- 
esis of the Germanic mark has, no doubt, served a 
useful purpose as a center around which the study 
of primitive institutions might gather. It is, per- 
haps, time to lay it aside as a dogma, and approach 
the subject from a new standpoint, viz., the unbroken 
continuity of human life and human institutions. 






i 



1; I 



AUTHORS REFERRED TO IN THIS VOLUME. 



-•O*- 



Adams, Herbert B. The Germanic Origin of New England Towns. 
Village Communities of Cape Anne and Salem. (Johns Hopkins 
University Studies, Vol. I, 1883.) 
Adams, C. F. The Genesis of the Massachusetts Towns, Proc. 

Mass. Hist. Soc, 1892. 
Allen, Wm. F. Monographs and Essays (1890),— containing a 
series of Essays and Reviews on the Mark Theory. (Pub- 
lished after the author's death.) 
Andrews, Chas. M. The Old English Manor, 1892. 
Anglo-Saxon Chronicle. (Bohn's ed.) 

Ashley, Wm. J. An Introduction to English Economic History 
and Theory, Vol. I, 1888. 
Introduction to Fustel de Coulanges' Origin of Property in 

Land, 1892. 
Review of Vinogradoff 's " Villainage in England " in Economic 

Rev. (London), April, 1893. 
Review of Gomme's "Village Community," Pol. Sci. Qr., 1891. 
Review of Andrew's " Old English Manor," Pol. Sci. Qr., 1893. 
Bede. Ecclesiastical History of England. Ed. by Stevenson, Lon- 
don, 1838. 
BiRKBECK, Wm. Lloyd. The Distribution of Land in England, 1885. 

Caesar. De Bello Gallico. 
CooTE, Chas. C. The Romans of Britain, 1878. 
Channing, Edward. Town and County Gov't in the English 
Colonies of N. A. J. H. U. Studies, 1884. 
The Genesis of the Massachusetts Towns, 1892. 



158 



Authors Referred To. 



Cunningham, W. The Growth of English Industry and Com- 
merce (Early and Middle Ages), 1890. 
Domesday Book. 
Elton, Charles. The Origins of English History, 1882. 

Review of Recherches sur quelques problemes d*histoire, 1886. 

Sketch of Fustel de Coulanges in English Historical 

Review, 1890. 
Ellis, Sir Henry. Introduction to Domesday Book, 1833. 
Egleston, Melville. Land System of New England, 1880. 
Earle, John. Land Charters and other Saxonic Documents, 

1888. 
Freeman, Edward A. The Norman Conquest (3d ed.), 1877. 
Fustel de Coulanges. Recherches sur quelques problemes d'his- 

toire. Paris, 1885. 
L'AUeu et le domaine rural, Paris, 1889. 
Origin of property in land (Eng. trans, by Mrs. Ashley), 1891. 
Fisher, Joseph. Land-holding in England, 1875. 
GoMME, G. L. The Village Community, 1890. 
Green, J. R. The Making of England (Amer. ed.), 1882. 
George, Henry. Progress and Poverty, 1880. 
Glasson, E. Les Communaux et le domaine rural a I'dpoque 

franque, 1890. 
Gloucester Cartulary. Ed. 1867. 
Howard, Geo. E. Introduction to the Local Const. Hist, of the 

United States, Vol. I, 1889. 
HosMER, James K. A Short History of Anglo-Saxon Freedom, 

1890. 
Hutchinson, L. Discussion of Tributarii in Qr. Jour. Economics, 

March, 1893. 
Kemble, J. M. Saxons, 1849. 
Codex Diplomaticus, 1839. 
KiRKUP, Thomas. History of Socialism, 1892. 



Authors Referred To. 



159 



KOVALEVSKY, Maxime. Tableau des origines et de revolution 
famine et de lapropriete (Stockholm), 1890. 
Modern Customs and Ancient Laws of Russia, 1890. 
Laveleye, Emile de. De la Propriete et de ses formes primi- 

tives, 1874. 
Lex Salica. 
Leges Baiuv^tariorum. 
Leges Alamannorum. 

Leges Visigothorum. For this and the three preceding collec- 
tions the Walter edition of Corp. Jur. Germ. Antiq. (1824) 
has been used as a rule. 
Marx, Karl. Capital. Appleton edition, 1889. 
Maine, Sir Henry. Ancient Law, 1861. 

Village Communities in the East and West, 187 1. 
The Early History of Institutions, 1847. 
Early Law and Custom, 1883. 
Maitland, F. W. Pleas of the Crown for the County of Gloucester, 

1884. 
Maurer, Georg von. Einleitung zur Geschichte der Mark-, Hof-, 

Dorf-, und Stadt-Verfassung, 1854. 
MORIER, R. B. D. System of Land Tenure in Various Countries 
(Cobden Club), 1870. 
Local Government and Taxation (Cobden Club), 1875. 
Mill, John Stuart. Elements of Political Economy. 

Review of Maine's Vil. Com., Fortnightly, 187 1, Vol. I. 
Montague, Professor. Review of Baden-Powell's Land System 

in India, Eng. Hist. Rev., April, 1893. 
Nasse, Erwin. Land Community in the Middle Ages (Cobden 

Club), 1 87 1. 
Osgood, H. L. Review of Hosmer's Anglo-Saxon Freedom, Pol. 

Sci. Qr., March, 1891. 
Palgrave, Francis. English Commonwealth, 1832. 



( 






i6o 



Authors Referred To. 



Pollock, Sir Frederick. The Land Laws (2nd ed.), 1887. 
Rogers, Thorold. The Economic Interpretation of History, 1888. 
Ross, Denman W. The Mark and the Manor, 1879. 

The Early History of Institutions I-III, 1880. 

Theory of Primitive Democracy in the Alps, 1880. 

Land holding among the Eariy Germans, 1883. 
Skene, W. F. Celtic Scotland, 1876. 
SCARTH, H. M. Roman Britain, 1883. 
SCROPE, G. PouLLET. The History of Manor and Ancient Barony 

of Castle Combe, 1852. 
Seebohm, Frederick. The English Village Community, 1883. 
Stubbs, Wm. Select Charters (3d ed.), 1876. 

Constitutional History of England, 1873. 
Tacitus. Germania, 

Thorpe, B. Ancient Laws of England, 1840. 
ViNOGRADOFF, PAUL. Villauiage in England, 1892. 



INDEX. 



Acre strips, 64, 65. 

Adams, C. F. 129. 

Adams, H. B. 118, 119. 

Ager, 32-36. 

Ager publicus, 34, 35. 

Aidan, Bishop of, 57. 

Alamanni, laws of, 44, 45, 47» 48« 

Allen, W. F. 38, 57, 71, 76, ^T, 

82. 
Allmende^ 43-47 > i^o* 
Allotments, 8. 
Ancient demesne, 77, 91- 
Andrews, C. M. 99. 
Anglo-Saxon charters, 21, 53-55. 
Anglo-Saxon Chronicle, 21, 55, 

68. 
Anglo-Saxon law, 21, 6o, 
Aquinas, St. Thomas, 152. 
Arable mark, 8, 64, 118. 
Ariovistus, 39. 
Aristotle, 133. 
Aryan, 4, 109. 
Ashley, W. J. 25, 71, 75, 78, 109, 

143- 
Augustine, St. 56, 125. 

Barones Regis, 69. 
Bavarian law, 44. 
Bede, 54, 58, 103. 
Benefices, 102. 
Bible, English, 125. 



Birkbeck, W. L. 72, ^^, 78, 86. 
Black Death, 65, 90. 
Boon-days^ 65. 
Bordariiy 67, 68. 
Borough English, 95. 
Bracton, 87. 
Britons, 105. 

Caed walla, 55. 
Caesar, 20, 29, 34, 39, 40. 
Castle Combe, 80, 81. 
Ceorl, 88. 

Channing, E. 116, 128, 130. 
Chatti, 32. 
Chiefs, 29, 30, 32. 
Cicero, 35. 
Col onus y 71, loi. 
Commarchaniy 46. 
Commendation, 102. 
Common fields, 64. 
Common mark, 8, 15, 118. 
"Common rights," 97, 137. 
Commoner, 10, 134. 
Communal character of Amer- 
ican settlements, 118, 129, 130, 

137- 
Cotmnunia^ 43-47. 

Commutation, 75-78, 89, 

ConsorteSy 46. 

Continuity of ideas, 107. 

Coaration, 104. 



l62 



Index. 



Coote, C. C. 102. 

Cotariiy 68, 8i, 82. 

Coulanges, Fustel de, 25, 26, 35, 

40-43» 46-48, 50» ^o^- 
Court Baron, 83, 84, 94. 
Court Customary, 83, 84. 
Cottiers, 65. 

Cunningham, W. 40, 103. 
Customary tenants, 82. 

Danish influence, 105. 
Decumate lands, 33. 
Demesne y 65, 67. 
Democracy of the mark, 10, 82, 

i34» 137- 
Ditnidiae Virgatae, 81. 

Domesday, 66-69, 78, 81, 82, 94, 

124. 

DominicuSy 83. 

Dominium y 146. 

Earle, J. 42, 53, 60, 82, 83, 84. 
Edict of Chilperic, 42. 
Edward the Confessor, 69. 
Egleston, M. 132. 
Ellis, H. 67, 68. 
Elton, C. 82, 83, 97. 
Enclosure Acts, 22, 64. 
Engels, Fr. 146. 

Equality, 10, 17, 22, 80, 125, 137. 
Ethelbert, 21, 52, 53, 57, 71. 
Ethnology, 112. 
Evolution of property, 1 54. 

Fallei, manor of, 69. 
Fenni, -t^^. 
Finis, 42. 
Firmy 75, 78. 



Fisher, J. 150. 
Freemen, 10, 71, 78, 154. 
Freeman, E. A. 7, 14, 61. 
Frisian Law, 44. 
Furlongs, 64. 

Geneat land, 70. 

General court, 127, 131, 138. 

George, Henry, 7, 150. 

German law, 40, 43-45. 

Germania, 33, 36. 

Germans as described by Caesar 

39- 
Germans as described by Tacitus, 

29. 

Glanville, 87. 

Glasson, E. 27. 

Gomme, G. L. 6, 13,87, 104, no. 

Green, J. R. 7, 10, 13. 

Halimote, 87, 94. 

Hallam, 60. 

Hamy 53. 

Hengist, 116, 123, 124, 

Hide, 55. 

Hilda, Abbess, 54. 

Howard, G. E. 115, 118. 

Hundred Rolls, 65. 

Hutchinson, L. 54. 

Indian village community, 109. 
Individualism of the mark, 17, 
107, 120. 

Ine, 7 1» US- 
Intermixed strips, 97, 98, I04« 

Jubainville, 5. 
Judicial combat, 44. 



Index. 



163 



Kemble, J. M. i, 3» 9» io» "» 53- 

56, 59, 60, 135. 
Kinship, 12. 
Kovalevsky, M. 5, 47-49- 

Labor services of villains, 76, 90. 
L'AUeu et le domain rural, 27. 
Land-marks, 45. 
Land .in villainage, 67, 70. 
Land, the gift of nature, 151. 
Laveleye, Emilede, 5, 9, 146, i49 
Legal evidence, 86, 88-92. 
Liber e tenentesy 65, 66, 75. 
Liberiy 66, 80, 82. 
Life principle of the village com- 
munity, 135. 

Maine, Sir H. 4, 9» io» "' ^2, 13, 

14, 18, 104. 
Maitland, F. W. 83, 92, 94. 
Manorial courts, 83, 84, 87, 92, 

93. 

Manorial element of New Eng- 
land settlements, 139. 

Marcay 42, 43. 

Marches, 42. 

Mark, 8, 40. 4i» 43» 45- 
Marriage of a daughter, 65, 66. 

Marx, Karl, 146. 
Massachusetts Bay Company, 

127, 13^- 
Maurer, G. von, 2, 3, 4» 8, n, 21, 

24, 34, 35» 44, 45» 46, 5o» 59- 

Melbroc, manor of, 78. 

Military character of Saxon set- 
tlement, 84, 85, 86. 

Mill, J. S. 7, i45» U8, 150- 
Mill, obligation of tenant to use 

lord's, 65, 66. 



Mir, 5, 1 10. 
Monday-men, 81, 82. 
Montague, Professor, 109. 
Morier, R. B. D. 8, 9, 12, 13. 
Mourt*s relation, 119. 

Nasse, E. 3, 4» 5» ^ 5- 

Nativiy 81. 

Natural agents, 151, 152- 

" Natural rights," 125, 150, 152. 

Norman Conquest, 14, 18, 90, 

93- 
Norman Influence, 106. 

Open fields, 64, 70, 97, 98* I04- 
Organized colonization, 138. 
Osgood, H. L. 123. 

Oswy, 54. 

Ox, sale of by villain, 60. 



Palgrave, Sir F. 59, 60. 
Patria potestas y 11. 
Patriarchal system, 5, 12, 18, 148. 
Per annosy 36, 37. 
Plymouth settlement, 119-121. 
Pollock, Sir F. 60, 148. 
Population, 67, 68. 
Precariaey 65. 

Private Property among the Ger- 
mans, 35. 
Property in land the result of 

robbery, 143-4- 
Proprietors, 133, 134- 

Rectitudines Singularum Per- 
sonarum, 70, 74, 7 5» 7 6- 

Remains, 62. 

Resumption of land as com- 
munal property, 142-144. 



^^ 



164 



Index. 



Ripuarian law, 45, 47. 
Rogers, Thorold, 153. 
Roman Influence, 27, 90, 105, 

123, 125. 
Roman law, influence of, 90, 

125. 
Roman Villa, 83, loi. 
Ross, D. W. 36, 48, 51. 
Rotuli Hundredorum, 65, 'j'j, 

Salem settlement, 120, 121. 
Salic law, 44, 45, 96, 102. 
Saxon Conquest, 102. 
Scarth, H. M. 103. 
Scrope, G. Poullet, 80. 
Seebohm, F. 25, 63, 66, 70, 80, 

84, loi, 104. 
Serfdom among the Germans, 

Servi^ 67, 68, 75, 81. 

Services of villains, 66. 

Shots, 64. 

Skene, W. F. 104. 

Sochtnanni^ 67, 68, 75. 

Status of the villain, 67, 88, 90. 

Stubbs, W. 7, 1 01. 

Tacitus, 20, 29, 40, 58, 73, 86, 

120, 121, 122. 
Terminus^ 41, 42, 



/ 



Terminology, 11 8, 

Thanes, 69. 

Theow, 71. 

Thorpe, B. 41, 60. 

Thuringian law, 44. 

Traditiones, 50. 

Tribal conditions, 1 04-1 05, 

Tributarily 54. 

Tun, 53, 115, 119, 120, 121. 

Unearned increment, 153. 

Villani, 65, 67, 68, 88. 
Village Mark, 15, 118, 120. 
VUlata, 78. 
Vinogradoff, Paul, 77, 84, 87, 88, 

90» 94» 95» 96, 98. 
Viollet, 5. 

Virgatae, 81. 

Virgate, 65, 67. 

Visigothic law, 44. 

Week-work, 65, 76, 
Wergild, 58. 
Whitraed, 115. 
Winslow Manor Rolls, 65. 
Wyclif, 125. 

Yardlands, 65, 71. 



ADVERTISEMENTS. 



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IRREGULAR PAGINATION 



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POLITICAL SCIENCE. 



143 



Political Science and Comparative Constitutional 

• Law. 

Bv Tom W BUBGBSS, LL.D., Professor of Constitutional and Inter- 
lltSo^msi.^^^ liw, and Dean of the School of Polmca^ Sconce 
in rniiimbia Collese. Two volumes. 8vo. tlotb. 7»i pages. B«idii 
priS & S^^»S terms to teachers and for introduction. 

THE first Part of the work is devoted to the general principles of 
political science. It is divided into three Books. The first 
book treats of the nation as an ethnological concept ; the second 
treats of the state, its idea, its origin, its forms, and its ends ; and 
the third shows the historical development of the four typical 
constitutions of the modern age, those of England, Germany, 
France, and the United States. 

The second Part is devoted to a comparison of the provisions ot 
these typical constitutions and a generalization from these provis- 
ions of some fundamental principles of constitutional law. The 
three Books of this Part treat, the first of sovereignty within the 
constitution, the second of civil liberty, and the third, which con- 
Btitutes the second volume, of government, legislative, executive, 
and judicial. 



The London Times : A very 
learned, elaborate, and suggestive 
work. ... His work ... is full of 
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political science and jurisprudence. 



Currency, Finance, and Banking. 

Laws of the United States relating to Currency, Finance, and Banking; 
with Vetoed BiUs and other documents. Compiled by Charles F. 
DuNBA^ Professor of Political Economy in Harvard University. 8vo. 
cX 309 pages: Mailing price, ^2.50 ; special terms for use m classes. 

THIS book presents in chronological order the exact text of all 
important acts of Congress relating to currency, finance, com- 
age, and banking from 1789 to 1891, with carefully edited abstracts 
of acts or sections of minor importance. 



The Nation, Kew York : A work 
of obvious utility and convenience. 
. . . Professor Dunbar's task has been 
most scrupulously executed, and a 



bare statement of the nature of it 
wiU stand in lieu of praise. The 
volume is beautifully printed. 



■^!— ^»"^nB>- 



144 



POLITICAL SCrENCB. 



Political Science Quarterly. 



A Review devoted to the Historical, Statistical, and Comparatiye Study 
of Politics, Economics, and Public Law. 

Edited by the Faculty of Political Science of Columbia College. Crown 
8vo. About 180 pages in each number. Annual subscription, $3.00; 
Single number, 75 cents. Back numbers and bound volumes can be 
obtained from the publishers. 

TT is the purpose of the Quarterly to furnish a field where 
topics of real public interest may be discussed by scientific men 
from the scientific point of view. 

Its practical tendency is shown by the following partial list of 
subjects discussed during the past eight years : — 

Taxation, the Customs Tariff, the National Banks, Silver Coin- 
age, the Labor Question, the Railroad Question, the Land Question 
and the Mortgage Question, Civil Service Reform, Municipal Gov- 
ernment, the Machinery of Nominations and Elections, the Census, 
Immigration, Trusts, Governmental Control of Lidustry, and 
Socialism. 



E. I. Gk>dkin, Editor of New York 
Evening Post and Nation : I know 
of no periodical of its kind which 
maintains a higher standard of excel- 
lence. The longer articles are gen- 
erally models of clear and adequate 
discussion such as only thoroughly 



competent hands can produce. But 
the feature which I think most 
distinctly meritorious is the book 
reviews. Their thoroughness and 
impartiality and independence are 
excellent signs of the times. 



The Philosophy of Wealth. 

Economic Principles Newly Formulated. By John B. Clark, A.M., 
Professor of History and Political Science in Smith College ; Lecturer 
on Political Economy in Amherst College. 12mo. Cloth, xiii + 235 
pages. Mailing price, $1.10; for introduction, $1.00. 

rPHIS work is a re-statement of economic principles in harmony 
with the modern spirit. It aims to secure a truer conception 
of wealth, labor, and value, and of the process of distribution, and 
takes into account the action of moral forces and the organic 
nature of society. 



Kew York Tribime : No book is 
remembered in which these vital 
questions have been treated in a 



more elevated and noble tone, or 
with more of searching and original 
thought. 



r 



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COLUMBIA UNIVERSITY LIBRARIES 

This book is due on the date indicated below, or at the 
expiration of a definite period after the date of borrowing, as 
provided by the library rules or by special arrangement with 
the Librarian in charge. 



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